TEHSEEN S. POONAWALLA versus UNION OF INDIA AND OTHERS

[2018] 9 S.C.R. 291

TEHSEEN S. POONAWALLA

UNION OF INDIA AND OTHERS

(Writ Petition (Civil) No. 754 of 2016)

JULY 17, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR ANDDR. D. Y. CHANDRACHUD, JJ.]

Constitution of India – Art. 32 – Cow protection groupsindulging in violence – Cow vigilantism and other incidents oflynching – Writ petition u/Art. 32 seeking direction to State to takeimmediate and necessary action against the cow protection groupsindulging in violence – Issuance of direction to remove the violentcontents from the social media – Held: Act of lynching is unlawful –It is constitutional duty to take call to protect lives and humanrights – No citizen can assault the human dignity of another, forsuch an action would comatose the majesty of law – Authoritiesconferred with the responsibility to maintain law and order in theStates have the principal obligation to see that no individual or anycore group take law into their own hands – It is to be seen thatvigilantism, cow vigilantism or any other vigilantism of anyperception, does not take place, else it would usher in anarchy,chaos, disorder – Thus, vigilantism cannot be allowed – Lynchingis an affront to the rule of law and to the exalted values of theConstitution itself – Steps to be taken at every stage forimplementation of law are extremely important – Hence, theguidelines in the form of preventive, remedial and punitive measuresare prescribed – Centre and State Government to carry out saidmeasures within the stipulated period.

Guidelines – Cow vigilantism, incidents of lynching and mobviolence – Issuance of guidelines in the form of preventive, remedialand punitive measures to curb cow vigilantism and incidents oflynching.

Legislation – Offence of lynching – Recommendations to thelegislature, Parliament, to create separate offence for lynchingand provide adequate punishment for the same.

292SUPREME COURT REPORTS

AIssuing directions, the Court

HELD: 1.1 The States have the onerous duty to see thatno individual or any core group take law into their own hands.Every citizen has the right to intimate the police about theinfraction of law. An accused booked for an offence is entitled toBfair and speedy trial under the constitutional and statutory schemeand, thereafter, he may be convicted or acquitted as per theadjudication by the judiciary on the basis of the evidence broughton record and the application of legal principles. There cannotbe an investigation, trial and punishment of any nature on thestreets. The process of adjudication takes place within theChallowed precincts of the courts of justice and not on the streets.No one has the right to become the guardian of law claiming thathe has to protect the law by any means. [Para 15] [312-G-H;313-A-B]

Krishnamoorthy v. Sivakumar and Others (2015) 3 SCCD467 : [2015] 4 SCR 987 ; Shakti Vahini v. Union ofIndia & others 2018 (5) SCALE 51 ; Nandini Sundarand Others v. State of Chhattisgarh (2011) 7 SCC547 : [2011] 8 SCR 1028 ; Mohd. Haroon and Othersv. Union of India and Another (2014) 5 SCC 252 :E[2014] 4 SCR 907 ; Archbishop Raphael CheenathS.V.D. v. State of Orissa and Another (2016) 9 SCC682 – referred to.

1.2 There can be no doubt that the authorities which areconferred with the responsibility to maintain law and order in theFStates have the principal obligation to see that vigilantism, be itcow vigilantism or any other vigilantism of any perception, doesnot take place. When any core group with some kind of idea takethe law into their own hands, it ushers in anarchy, chaos,disorder and, eventually, there is an emergence of violentsociety. Vigilantism cannot, by any stretch of imagination, be givenGroom to take shape, for it is absolutely perverse notion.Certain applications have been filed on the basis that there iscattle smuggling and cruel treatment to animals. It is the lawenforcing agencies which have to survey, prevent and prosecute.No one has the authority to enter into the said field and harbourHthe feeling that he is the law and the punisher himself. country

where the rule of law prevails does not allow any such thought.It, in fact, commands for ostracisation of such thoughts withimmediacy. [Para 17] [313-F-G; 314-A-B]

1.3 Lynching is an affront to the rule of law and to theexalted values of the Constitution itself. It is said without anyfear of contradiction that lynching by unruly mobs and barbaricviolence arising out of incitement and instigation cannot beallowed to become the order of the day. Such vigilantism, be itfor whatever purpose or borne out of whatever cause, has theeffect of undermining the legal and formal institutions of the Stateand altering the constitutional order. The tumultuous dark cloudsof vigilantism have the effect of shrouding the glorious ways ofdemocracy and justice leading to tragic breakdown of the law andtransgressing all forms of civility and humanity. Unless theseincidents are controlled, the day is not far when such monstros-ity in the name of self-professed morality is likely to assume theshape of huge cataclysm. It is in direct violation of thequintessential spirit of the rule of law and of the exalted faiths oftolerance and humanity. [Para 18] [314-B-E]

1.4 Mob vigilantism and mob violence have to be preventedby the governments by taking strict action and by the vigil societywho ought to report such incidents to the state machinery andthe police instead of taking the law into their own hands. Risingintolerance and growing polarisation expressed through spate ofincidents of mob violence cannot be permitted to become thenormal way of life or the normal state of law and order in thecountry. Good governance and nation building require sustenanceof law and order which is intricately linked to the preservation ofthe marrows of the social structure. In such situation, the Statehas sacrosanct duty to protect its citizens from unruly elementsand perpetrators of orchestrated lynching and vigilantism withutmost sincerity and true commitment to address and curb suchincidents which must reflect in its actions and schemes.[Para 19] [314-E-H]

1.5 Hate crimes as product of intolerance, ideologicaldominance and prejudice ought not to be tolerated; lest it resultsin reign of terror. Extra judicial elements and non-State actors

Acannot be allowed to take the place of law or the law enforcingagency. fabricated identity with bigoted approach sansacceptance of plurality and diversity results in provocativesentiments and display of reactionary retributive attitudetransforming itself into dehumanisation of human beings. Suchan atmosphere is one in which rational debate, logical discussionBand sound administration of law eludes thereby manifesting cleardanger to various freedoms including freedom of speech andexpression. One man’s freedom of thought, action, speech,expression, belief, conscience and personal choices is not beingtolerated by the other and this is due to lack of objectiveCrationalisation of acts and situations. [Para 20] [315-A-C]

1.6 Freedom of speech and expression in different forms isthe élan vital of sustenance of all other rights and is the veryseed for germinating the growth of democratic views. Plurality ofvoices celebrates the constitutionalist idea of liberal democracyDand ought not to be suppressed. That is the idea and essence ofour nation which cannot be broken up into fragments by narrowdomestic walls of caste, creed, race, class or religion. Pluralismand tolerance are essential virtues and constitute the buildingblocks of truly free and democratic society. It must beemphatically stated that dynamic contemporary constitutionalEdemocracy imbibes the essential feature of accommodatingpluralism in thought and approach so as to preserve cohesivenessand unity. Intolerance arising out of dogmatic mindset sows theseeds of upheaval and has chilling effect on freedom of thoughtand expression. Hence, tolerance has to be fostered and practisedFand not allowed to be diluted in any manner. [Para 21][315-D-G]

S. Rangarajan v. P. Jagjivan Ram and Others (1989) 2SCC 574 : [1989] 2 SCR 204 – referred to.

Handyside v. United Kingdom 1976 EHRR 737 –referred to.G

1.7 In rights based approach to constitutional legitimacy,the right to life and liberty is considered paramount and, therefore,democratic governments must propel and drive towards strongerfoothold for liberties so as to ensure sustenance of higher values

of democracy thereby paving the path for spontaneousconstitutional order. Crime knows no religion and neither theperpetrator nor the victim can be viewed through the lens ofrace, caste, class or religion. The State has positive obligationto protect the fundamental rights and freedoms of all individualsirrespective of race, caste, class or religion. The State has theprimary responsibility to foster secular, pluralistic and multi-culturalistic social order so as to allow free play of ideas and beliefsand co-existence of mutually contradictory perspectives. Stiflingfree voices can never bode well for true democracy. It isessential to build societies which embrace diversity in all spheresand 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 necessary precondition that all must embrace the sentimentthat they are the essential constituents of diversity that galvanizesfor preservation of unity and respects pluralistic perceptions incohesion 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 AdiVisheshwara 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. LalaiSingh Yadav (1976) 4 SCC 213 : [1977] 1 SCR 616 –referred to.

1.9 The law provides procedure for arrest and equally forinvestigation and the consequential trial. That is what has beeninterpreted by this Court while dealing with Article 21 of theConstitution. Thus, the rights of the citizens cannot be destroyedin an unlawful manner. As the investigating agency has to showfidelity to the statutory safeguards, similarly, every citizen isrequired to express loyalty to law and the legal procedure. Noone, is entitled to take the law into his own hands and annihilateanything that the majesty of law protects. When the vigilantes

Ainvolve themselves in lynching or any kind of brutality, they, infact, put the requisite accountability of citizen to law on theventilator. That cannot be countenanced. Such core groups cannotbe allowed to act as they please. They cannot be permitted toindulge in freezing the peace of life on the basis of their contrivednotions. They are no one to punish person by ascribing anyBjustification. The stand and stance put forth in the interlocutoryapplications filed by the impleaded parties intend to convey certaincontraventions of the provisions of statutory law but theprescription of punishment does not empower any one toauthorize himself to behave as the protector of law and imposeCpunishment as per his choice and fancy. That is the role and dutyof the law enforcing agencies known to law. No one else can bepermitted to expropriate that role. It has to be clearly understoodthat self-styled vigilantes have no role in that sphere. Their onlyright is to inform the crime, if any, to the law enforcing agency. It

is the duty of the law enforcement agencies and the prosecutorsDto bring the accused persons before the law adjudicatingauthorities who, with their innate training and sense of justice,peruse the materials brought on record, follow the provisions oflaw and pass the judgment. In the scheme of things, the externalforces cannot assume the role of protectors and once they paveEthe said path, they associate themselves with criminality and bringthemselves in the category of criminals. It is imperative for themto remember that they are subservient to the law and cannot beguided by notions or emotions or sentiments or, for that matter,faith. [Para 34][320-D-H; 321-A-B]

FD.K. Basu v. State of West Bengal (1997) 1 SCC 416 :[1996] 10 Suppl. SCR 284 ; Joginder Kumar v. State ofU.P. and Others (1994) 4 SCC 260 ; Nilabati Behera v.State of Orissa and Others (1993) 2 SCC 746 ; State ofM.P. v. Shyamsunder Trivedi and Others (1995) 4 SCC262 : [1995] 1 Suppl. SCR 44 ; Arnesh Kumar v. StateGof Bihar and Another (2014) 8 SCC 273 : [2014] 8SCR 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.

1.10 The act of lynching is unlawful. It has become asweeping phenomenon with far-reaching impact. It isconstitutional duty to take call to protect lives and human rights.There cannot be right higher than the right to live with dignityand further to be treated with humanness that the law provides.What the law provides may be taken away by lawful means; thatis the fundamental concept of law. No one is entitled to shake thesaid foundation. No citizen can assault the human dignity ofanother, for such an action would comatose the majesty of law. Ina civilized society, it is the fear of law that prevents crimes. Whenthe preventive measures face failure, the crime takes place andthen there have to be remedial and punitive measures. Steps tobe taken at every stage for implementation of law are extremelyimportant. Hence, the guidelines are necessary to be prescribed.[Para 39][323-D-H]1.11 Preventive Measures

(i) The State Governments shall designate, senior policeofficer, not below the rank of Superintendent of Police, as NodalOfficer in each district. Such Nodal Officer shall be assisted byone of the DSP rank officers in the district for taking measures toprevent incidents of mob violence and lynching. They shallconstitute special task force so as to procure intelligence reportsabout the people who are likely to commit such crimes or whoare involved in spreading hate speeches, provocative statementsand fake news.

(ii) The State Governments shall forthwith identify Districts,Sub-Divisions and/or Villages where instances of lynching andmob violence have been reported in the recent past, say, in thelast five years. The process of identification should be done withina period within the stipulated period.

(iii) The Secretary, Home Department of the concernedStates shall issue directives/advisories to the Nodal Officers ofthe concerned districts for ensuring that the Officer In-charge ofthe Police Stations of the identified areas are extra cautious ifany instance of mob violence within their jurisdiction comes totheir notice.

A(iv) The Nodal Officer, so designated, shall hold regularmeetings (at least once month) with the local intelligence unitsin the district along with all Station House Officers of the districtso as to identify the existence of the tendencies of vigilantism,mob violence or lynching in the district and take steps to prohibitinstances of dissemination of offensive material through differentBsocial media platforms or any other means for inciting suchtendencies. The Nodal Officer shall also make efforts to eradicatehostile environment against any community or caste which istargeted in such incidents.

(v) The Director General of Police/the Secretary, HomeCDepartment of the concerned States shall take regular reviewmeetings (at least once quarter) with all the Nodal Officers andState Police Intelligence heads. The Nodal Officers shall bring tothe notice of the DGP any inter-district co-ordination issues fordevising strategy to tackle lynching and mob violence relatedDissues at the State level.

(vi) It shall be the duty of every police officer to cause amob to disperse, by exercising his power under Section 129 ofCrPC, which, in his opinion, has tendency to cause violence orwreak the havoc of lynching in the disguise of vigilantism orEotherwise.

(vii) The Home Department of the Government of Indiamust take initiative and work in co-ordination with the StateGovernments for sensitising the law enforcement agencies andby involving all the stake holders to identify the measures forFprevention of mob violence and lynching against any caste orcommunity and to implement the constitutional goal of socialjustice and the Rule of Law.

(viii) The Director General of Police shall issue circularto the Superintendents of Police with regard to police patrollingGin the sensitive areas keeping in view the incidents of the pastand the intelligence obtained by the office of the Director General.It singularly means that there should be seriousness in patrollingso that the anti-social elements involved in such crimes arediscouraged and remain within the boundaries of law thus fearingto even think of taking the law into their own hands.H

(ix) The Central and the State Governments shouldbroadcast on radio and television and other media platformsincluding the official websites of the Home Department and Policeof the States that lynching and mob violence of any kind shallinvite serious consequence under the law.

(x) It shall be the duty of the Central Government as wellas the State Governments to take steps to curb and stopdissemination of irresponsible and explosive messages, videosand other material on various social media platforms which havea tendency to incite mob violence and lynching of any kind.

(xi) The police shall cause to register FIR under Section153A of IPC and/or other relevant provisions of law againstpersons who disseminate irresponsible and explosive messagesand videos having content which is likely to incite mob violenceand lynching of any kind.

(xii) The Central Government shall also issue appropriatedirections/advisories to the State Governments which wouldreflect the gravity and seriousness of the situation and themeasures to be taken. [Para 40] [324-A-H; 325-A-H]

Remedial Measures

(i) Despite the preventive measures taken by the StatePolice, if it comes to the notice of the local police that an incidentof lynching or mob violence has taken place, the jurisdictionalpolice station shall immediately cause to lodge an FIR, withoutany undue delay, under the relevant provisions of IPC and/orother provisions of law.

(ii) It shall be the duty of the Station House Officer, in whosepolice station such FIR is registered, to forthwith intimate theNodal Officer in the district who shall, in turn, ensure that thereis no further harassment of the family members of the victim(s).

(iii) Investigation in such offences shall be personallymonitored by the Nodal Officer who shall be duty bound to ensurethat the investigation is carried out effectively and the charge-sheet in such cases is filed within the statutory period from thedate of registration of the FIR or arrest of the accused, as thecase may be.

A(iv) The State Governments shall prepare lynching/mobviolence victim compensation scheme in the light of the provisionsof Section 357A of CrPC. In the said scheme for computation ofcompensation, the State Governments shall give due regard tothe nature of bodily injury, psychological injury and loss of earningsincluding loss of opportunities of employment and education andBexpenses incurred on account of legal and medical expenses.The said compensation scheme must also have provision forinterim relief to be paid to the victim(s) or to the next of kin ofthe deceased within period of thirty days of the incident of mobviolence/lynching.C

(v) The cases of lynching and mob violence shall bespecifically tried by designated court/Fast Track Courtsearmarked for that purpose in each district. Such courts shallhold trial of the case on day to day basis. The trial shall preferablybe concluded within six months from the date of taking

Dcognizance. This direction shall apply to even pending cases. TheDistrict Judge shall assign those cases as far as possible to onejurisdictional court so as to ensure expeditious disposal thereof.It shall be the duty of the State Governments and the NodalOfficers in particular to see that the prosecuting agency strictlycarries out its role in appropriate furtherance of the trial.E

(vi) In cases of mob violence and lynching, upon convictionof the accused person(s), the trial court must ordinarily awardmaximum sentence as provided for various offences under theprovisions of the IPC.F(vii) The courts trying the cases of mob violence and

(vii) The courts trying the cases of mob violence andlynching may, on application by witness or by the publicprosecutor in relation to such witness or on its own motion, takesuch measures, as it deems fit, for protection and for concealingthe identity and address of the witness.

G(viii) The victim(s) or the next of kin of the deceased incases of mob violence and lynching shall be given timely noticeof any court proceedings and he/she shall be entitled to be heardat the trial in respect of applications such as bail, discharge,release and parole filed by the accused persons. They shall alsohave the right to file written submissions on conviction, acquittalHor sentencing.

(ix) The victim(s) or the next of kin of the deceased in casesof mob violence and lynching shall receive free legal aid if he orshe so chooses and engage any advocate of his/her choice fromamongst those enrolled in the legal aid panel under the LegalServices Authorities Act, 1987. [Para 40] [326-A-H; 327-A-D]

Punitive Measures

(i) Wherever it is found that police officer or an officer ofthe district administration has failed to comply with the directionsin order to prevent and/or investigate and/or facilitate expeditioustrial of any crime of mob violence and lynching, the same shouldbe considered as an act of deliberate negligence and/ormisconduct for which appropriate action must be taken againsthim/her and not limited to departmental action under the servicerules. The departmental action shall be taken to its logicalconclusion by the authority.

(ii) The States are directed to take disciplinary action againstthe concerned officials if it is found that such official(s) did notprevent the incident, despite having prior knowledge of it, orwhere the incident has already occurred, such official(s) did notpromptly apprehend and institute criminal proceedings againstthe culprits. [Para 40] [327-E-H]

Arumugam Servai v. State of Tamil Nadu (2011) 6SCC 405 : [2011] 5 SCR 488 – referred to.

1.12 The measures that are directed to be taken have tobe carried out within the stipulated period by the Central and theState Governments. [Para 41] [328-A]

1.13 It is axiomatic that it is the duty of the State to ensurethat the machinery of law and order functions efficiently andeffectively in maintaining peace so as to preserve thequintessentially secular ethos and pluralistic social fabric in ademocratic set-up governed by rule of law. In times of chaos andanarchy, the State has to act positively and responsibly tosafeguard and secure the constitutional promises to its citizens.The horrendous acts of mobocracy cannot be permitted toinundate the law of the land. Earnest action and concrete stepshave to be taken to protect the citizens from the recurrent pattern

Aof violence which cannot be allowed to become “the new normal”.The State cannot turn deaf ear to the growing rumblings of itsPeople. The exigencies of the situation require to sound clarioncall for earnest action to strengthen the inclusive and all-embracing 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 separate offence for lynching and provideadequate punishment for the same. It is said so as special lawin this field would instill sense of fear for law amongst the peoplewho involve themselves in such kinds of activities. Fear of lawCand veneration for the command of law constitute the foundationof civilized society. [Para 43] [328-E-F]

Pravasi Bhalai Sangathan v. Union of India andOthers (2014) 11 SCC 477 : [2014] 4 SCR 446 –referred to.

Case Law Reference

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, PranjalKishore, 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. KrishnaPrasad, 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. EnatoliSema, Edward Belho, Amit Kumar Singh, K. Luikang Michael, AtulJha, Sandeep Jha, Dharmendra Kumar Sinha, M. Shoeb Alam, Ms. FauziaS., 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. BharathiReddy, Abhishek, Mrs. Anil Katiyar, Adarsh Upadhyay, M. YogeshKanna, Ms. Sujatha Bagadhi, Guntur Prabhakar, Ms. Prerna Singh, GopalSingh, 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., MrinmayBhattmewara, Rohit Pandey, Sanjay Kumar Tyagi, Suhaan Mukerji,Ms. Astha Sharma, Harsh Hiroo Gurjhani, Amit Verma, Vishal Prasad,Ms. Ruchira Gupta, Santosh Rebello, Bhaskar Chhakara, ShuvodeepRoy, Sayooj Mohan Das, Naman Kamboj, Rituraj Biswas, SanjeebPanigrahi, Ms. Rashmi Singhania, Anil Grover, Ms. Noopur Singhal, SatishKumar, Dr. Monika Gusain, Advs. for the appearing parties.

[2018] 9 S.C.R.

AThe Judgment of the Court was delivered by

DIPAK MISRA, CJI 1. Law, enacted for the benefit of thesociety by conferring rights on the citizens and to regulate social behaviourin many sphere, is required to be implemented by the law enforcingagencies and the citizens are duty bound to follow the law treating it asBsacred. Law has to be regarded as the foundation of civilized society.The primary goal of law is to have an orderly society where the citizenrydreams for change and progress is realized and the individual aspirationfinds space for expression of his/her potential. In such an atmospherewhile every citizen is entitled to enjoy the rights and interest bestowedunder the constitutional and statutory law, he is also obligated to remainCobeisant to the command of law. It has been stated in Krishnamoorthyv. Sivakumar and others[1], “the law, the mightiest sovereign in civilizedsociety”. The majesty of law cannot be sullied simply because an individualor group generate the attitude that they have been empowered by theprinciples set out in law to take its enforcement into their own hands andDgradually become law unto themselves and punish the violator on theirown assumption and in the manner in which they deem fit. They forgetthat the administration of law is conferred on the law enforcing agenciesand 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 rightsin law, the other is entitled to be treated as innocent till he is found guiltyEafter fair trial. No act of citizen is to be adjudged by any kind ofcommunity under the guise of protectors of law. It is the seminalrequirement of law that an accused is booked under law and is dealtwith in accordance with the procedure without any obstruction so thatsubstantive justice is done. No individual in his own capacity or as partFof group, which within no time assumes the character of mob, cantake law into his/their hands and deal with person treating him asguilty. That is not only contrary to the paradigm of established legalprinciples in our legal system but also inconceivable in civilized societythat respects the fundamental tenets of the rule of law. And, needless to

say, such ideas and conceptions not only create dent in the majesty ofGlaw but are also absolutely obnoxious.

2. It is worthy to note that the reliefs sought in all the writ petitionshave commonality, although the expression of language as well as thewidth of the prayer is slightly different. What really emanates as the

H1(2015) 3 SCC 467

pivotal issue requiring our contemplated consideration is the duty of thisCourt under the constitutional framework to deal with the primarygrievance that pertains to cow vigilantism and other incidents oflynching or, if we may say so, targeted violence and commission ofoffences affecting the human body and against private and publicproperty by mobs under the garb of self-assumed and self-appointedprotectors of law.

3. We shall state the facts in brief, for there are asseverationswith regard to numerous incidents of lynching and mob violence whichneed not be specifically stated since we are going to issue certaindirections covering the arena of preventive, remedial and punitivemeasures. We shall note the suggestions given by Mr. Sanjay R. Hegde,learned senior counsel in one of the writ petitions. We may further statethat we shall refer to the facts in Writ Petition (Civil) No. 754 of 2016.

4. The petitioner, social activist, has preferred this writ petitionunder Article 32 of the Constitution for commanding the respondent-State Nos. 3 to 8 to take immediate and necessary action against thecow protection groups indulging in violence; and further to issue writor direction to remove the violent contents from the social mediauploaded and hosted by the said groups. There is also prayer todeclare Section 12 of the Gujarat Animal Prevention Act, 1954, Section13 of the Maharashtra Animal Prevention Act, 1976 and Section 15 ofthe Karnataka Prevention of Cow Slaughter and Cattle PreservationAct, 1964 as unconstitutional. Certain incidents have also been narratedin the Writ Petition.

5. When the matter was taken up alongwith other matters on21[st] July, 2017, the Court, while not dealing with the third prayer,that is, for declaring certain provisions of the statutes mentionedhereinabove as unconstitutional, proceeded to state thus:-

“As far as the first prayer is concerned, on being asked, it issubmitted by Mr. Ranjit Kumar, learned Solicitor Generalappearing for the Union of India that the controversy relates tothe States, law and order being State subject. He furthersubmits that the Union of India does not support the activities ofthe vigilantes.

Ms. Hemantika Wahi, learned Standing Counsel for the State ofGujarat echoing the aforesaid submission contends that certainpersons who were engaged in this kind of activity, especially theincident that has been referred to in the writ petition, have beenbooked for relevant offences and appropriate police action is takenagainst them. Mr. Tapesh Kumar Singh, learned counsel for theState of Jharkhand submits that appropriate legal action has beentaken and the criminal cases have been instituted against thepersons who have taken law unto their hands.

At this juncture, it is submitted by Mr. Sanjay R. Hegde, learnedsenior counsel appearing for the petitioner that the Union of Indiaand the State Governments should file their respective affidavits.Mr. Ranjit Kumar, learned Solicitor General and the other learnedcounsel appearing for the States pray for four weeks’ time to filecounter affidavit. Needless to say, the counter affidavit shall alsorefer to the incidents, if any, referred to in the writ petitions.

As far as the prayer No.2 is concerned, Mr. Ranjit Kumar, learnedSolicitor General and the learned counsel appearing for thevarious States shall assist the Court as to how the activities of thevigilantes can be absolutely curtailed and suggest ways andmethods to work out the same.”

6. Be it noted, when Writ Petition (Civil) No. 732 of 2017 waslisted along with the main writ petition, i.e., Writ Petition (Civil) No. 754of 2016, on 6[th ]September, 2017, the Court, while issuing notice, notedthe statement made by the learned Solicitor General on the previousoccasion and, thereafter, noted the submissions advanced by Ms. IndiraFJaising, learned senior counsel appearing for the petitioner and Mr. TusharMehta, learned Additional Solicitor General appearing for the Union ofIndia. We think it appropriate to reproduce the said order as it containscertain interim directions:-“After referring to the same, it is urged by her that the law andorder enforcing agencies of the States have great responsibilitynot only to register the First Information Report (FIR) after theincident takes place but also see to it that groups or class ofpeople do not take the law into their hands and indulge invigilantism. Additionally, it is her submission that under Article256 of the Constitution of India, it is the obligation of the Central

Government to issue directions to the States so that the conceptof cooperative federalism is sustained and remains stable.

Mr. Tushar Mehta, learned Additional Solicitor General appearingfor the Union of India shall take instructions with regard to therole 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 ofHaryana, Gujarat, Maharashtra and Rajasthan submitted that theseStates will nominate senior police officer of the PoliceDepartment as the Nodal Officer in each District, who shallensure that these vigilantes do not take law unto themselves orbehave in manner that they are the law in themselves. If anykind of deviancy takes place, the said Nodal Officer shall takeaction and such vigilantes are booked in accordance with lawwith quite promptitude.

An issue has been raised by Ms. Indira Jaising, learned seniorcounsel with regard to patrolling on the highways so that suchcrimes are stopped. Mr. Tushar Mehta, appearing for the Statesof Gujarat, Haryana, Maharashtra and Rajasthan 4 shall obtaininstructions in this regard and also apprise what steps have beentaken by the said four States. As far as Highway patrolling isconcerned, the Chief Secretary of each State, in consultation withthe Director General of Police shall take steps and file affidavitsby the next date of hearing.

As far as the other States are concerned, it is directed that eachof them shall nominate senior Police Officer qua each Districtas Nodal Officer, who shall see to it that these vigilantes do nottake law unto themselves and the deviants in law are bookedquite promptly.

copy of the order be sent to the Chief Secretary of all theStates.”

7. On 22[nd] September, 2017, when the matter was listed, it wasnoted that the States of Uttar Pradesh, Karnataka, Jharkhand, Gujaratand Rajasthan had filed the compliance affidavit and an undertakingwas given on behalf of the State of Bihar to file the affidavit ofcompliance in the course of the day.

8. In pursuance of our order, the State of Uttar Pradesh has filedan affidavit annexing communication sent by the Secretary,Department of Home (Police) to Senior Superintendents of Police/AllSuperintendents of Police of all the districts in Uttar Pradesh. We thinkit appropriate to refer to the relevant paragraphs of the saidcommunication:-

“I have been directed to say that while ensuring the complianceof the aforesaid orders of the Hon’ble Supreme Court of India, aneffective control must be maintained over the Criminal Activitiesof the Vigilantes. Besides it the Designated Nodal Officer of eachdistrict shall take effective and prompt measures to curve theCriminal Activities of such Vigilantes. It must be ensured thatsuch antisocial elements are not permitted to involve themselvesin any of such criminal activities.

3. In the monthly crime meetings, this issue must be included asone of the issue to be closely monitored. It must be regularlyreviewed. Besides it, the Local Intelligence Unit must bedeputed to identify such Vigilante and an strict watch be main-tained on their activities.

4. It is further directed that while patrolling on the NationalHighways and other roads, the Local Police and dial 100 bedirected to ensure that no Vigilante takes over Law and Order inits hands and commits Criminal Act. Prompt enquiries be madeagainst the unlawful activities of such antisocial elements andnecessary legal action be taken against them through thedesignated Nodal Officers posed in their Districts. In case anysuch incidents comes to the notice of the local Police or dial 100during the patrolling, the same may be brought to the Notice ofthe Nodal Officer immediately. Thereafter further legal actionmay be ensured promptly by such designated Nodal Officers.

5. It is therefore directed that the aforesaid process is regularlyadopted, reviewed and monitored from time to time and thedetails if any be forwarded to the Director General of Police U.P.Lucknow, who shall also designate Nodal Officer out of theOfficers posted at the Police Headquarters. This matter must bereviewed regularly in each of the monthly meetings and thenecessary details after reviewing the situation be made availableto the State Government latest by 10[th] of the each Month.”

TEHSEEN S. POONAWALLA v. UNION OF INDIAAND OTHERS [DIPAK MISRA, CJI]

9. An affidavit has been filed on behalf of the State of Gujaratannexing orders dated 07.09.2017 and 11.09.2017 passed by theDirector General cum Inspector General of Police, Gujarat State and bythe Inspector General of Police, State Traffic Branch. The first orderreads thus:-

“The volunteers of the organizations associated with cowprotection or compassion for animals as well as other citizenshave no right to take law into their own hands to resort to violenceor other illegal acts, either collectively or individually, targetedagainst the individuals undertaking transportation of animals orcarrying on the trade in animals/meat, under the guise of cowprotection, the protection of the cow progeny or in the name ofcompassion for animals. With view to effectively curb suchillegal activities, the Hon’ble Supreme Court has directed vide theOrder in question to nominate senior Police Officer qua eachdistrict as the Nodal Officer. The Nodal Officer to be sonominated shall be required to make effective arrangements inhis jurisdiction, especially on the highways, to obviate illegal actsand violence in the name of cow protection or compassion foranimals. If some incidents does take place even after taking allprecautions, the Nodal Officer shall have to ensure that promptand effective legal action is initiated against the vigilantes involvedin the incident. To achieve these objectives, the following officersare hereby nominated as the Nodal Officers in the PoliceCommissionerates and Police Districts in the State of Gujarat.

Area Nodal Officer Police Concerned Commissionerate Commissioner of Police Police District Concerned Superintendent of Police Jurisdiction of Concerned Western Railway, Superintendent of Ahmedabad/Vadodra Police, Western Railway

2. With view to ensure effective legal proceedings in all offencesthat may get registered in connection with the illegal activitiesunder consideration, the Director General of Police, CID (Crimeand Railways), Gujarat State, Gandhinagar shall undertakequarterly review of all such cases.”

10. communication has been sent by the Inspector General ofPolice, State Traffic Branch from the office of the Director General toall the Police Commissioners, Range Heads and Police Superintendents(including Western Railway, Ahmedabad). The relevant part of the saidcommunication reads thus:-

C“While such incidents take place in certain specific places,specific roads and particular areas, such spots on NationalHighway, State Highway and other roads be identified and mapped.Further, as is known, there is specific pattern of violentincidents taking place and such workers have their camps atparticular time, particular spots and they intercept vehicles atDcertain specific places. Therefore, such time slots and venues beidentified within area of your jurisdiction as also specific modusoperandi being followed by the persons involved in transportationof cows be studied further and all police officers/personnel shouldbe briefed about the routes, time, vehicles and methods ofEpacking in vehicles used by such persons and instruct them tokeep vigil watch on them.

3. After surveying the area, secret watch be deployed at thesensitive spots (vulnerability mapping) so identified andconsidering the modus operandi of transporters of Gauvansh andFthe practices of Cow Protectors. Further, arrangements forintensive patrolling be made and thus prevent happening suchviolent incidents.

4. Considering sensitivity and gravity of violent assaults ontraders engaged in transportation of animals/meat, it should beensured that no so-called workers or organizations must interferein functioning of police in such cases, that no private persons shouldtake law in their hands and make arrangements for spreadingawareness among all concerned persons to prevent occurrenceof such incidents.

5. It shall be ensured that all the statutes concerning cows andanimals be followed by Police Department. Verification oflegality or otherwise of transportation of animals/meat isauthority of police department only. However, due to interferencein this by individuals or organizations other than police lead tosituation of conflicts and law and order issues, occurrence ofviolent incidents hence all possible efforts may be made toprevent the same and whenever any such incident takes place,legal procedures be initiated immediately and effective action betaken by tracing all the accused involved within further delay.”

It is noticeable that Nodal Officers have been nominated. Thereare affidavits filed by the other States indicating how compliance hasbeen carried out.

11. Mr. Sanjay R. Hegde, learned senior counsel appearing forthe petitioner in Writ Petition (Civil) No. 754 of 2016, whilesubstantiating the assertions made in the writ petition, submitted that noindividual or vigilante group can engage himself/themselves in anactivity of lynching solely on the basis of perception that crime hasbeen committed. That apart, submits Mr. Hegde, the supremacy of lawhas to be recognized and if law prescribes punishment for crime, ithas the mechanism provided under the law to do so. The proceduraland the substantial safeguards are required to be followed. It is urgedby Mr. Hegde, with all the emphasis at his command, that lynching orany kind of mob violence has to be curbed and crippled by the executiveand no excuse can ever be tolerated. Stress is laid on prevention,remedial and punitive measures. In this regard, he has placed relianceon recent judgment rendered in Shakti Vahini v. Union of India &others[2].

12. At this juncture, we may enumerate the submissions advancedby Ms. Indira Jaisingh, learned senior counsel for the petitioner in WritPetition (Civil) No. 732 of 2017. She has referred to Martin Luther KingJr. wherein he had said that law may not be able to make man lovehim, but it can keep the man from lynching him. She submits that therehas been constant increase in the number of incidents in recent yearsas consequence of which citizens belonging to minority communitieshave become victims of targeted violence which mainly originate on2 2018 (5) SCALE 51

Asuspicion and at times misinformation that the victims were involved inillegal cattle trade and such other activities. Learned senior counsel hasalso referred to certain specific incidents of lynching. It is additionallyargued by her that the Central Government be directed to intervene inexercise of the power conferred under Articles 256 and 257 of theConstitution to issue directions to the State Governments.B

13. It is urged by her that in the recent past, self proclaimed andself-styled vigilantes have brazenly taken law into themselves and havetargeted citizens belonging to certain communities and lower strata ofthe society which cannot be tolerated and it is the obligation of the Unionand the States to take immediate action warranted in law to stop suchCactivities. She has further submitted that there have been many an incidentof 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 action isrequired to be taken against the perpetrators when approached by theDfamily members of the victim.

14. She has canvassed that it is the foremost duty of the Centraland the State Governments to ensure that the members of the minoritiesare not targeted by mob violence and vigilante groups and if the illegalactions of these lynchers are not totally curbed, there would be absoluteEchaos where any private individual can take law into his own hands forthe enforcement of criminal law in accordance with his own judgment.

15. At the very inception, while delving into the rivalisedsubmissions advanced at the Bar, it is necessary to understand that acontroversy of the present nature deserves to be addressed withFenormous sensitivity. We had issued certain directions as an interimmeasure and there has been some compliance but we are of theconsidered opinion that the situations that have emerged and theproblems that have arisen need to be totally curbed. The States have theonerous duty to see that no individual or any core group take law intotheir own hands. Every citizen has the right to intimate the police aboutGthe infraction of law. As stated earlier, an accused booked for anoffence is entitled to fair and speedy trial under the constitutional andstatutory scheme and, thereafter, he may be convicted or acquitted asper the adjudication by the judiciary on the basis of the evidence brought

on record and the application of legal principles. There cannot be aninvestigation, trial and punishment of any nature on the streets. Theprocess of adjudication takes place within the hallowed precincts of thecourts of justice and not on the streets. No one has the right to becomethe 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 andothers v. State of Chhattisgarh[3], to strive, incessantly and consistently,to promote fraternity amongst all citizens so that the dignity of everycitizen is protected, nourished and promoted. That apart, it is theresponsibility of the States to prevent untoward incidents and to preventcrime.16. In Mohd. Haroon and others v. Union of India andanother[4], it has been clearly held that it is the responsibility of the StateAdministration in association with the intelligence agencies of both theState and the Centre to prevent recurrence of communal violence in anypart of the State. If any officer responsible for maintaining law andorder is found negligent, he/she should be brought within the ambit oflaw. In this context, reference to the authority in Archbishop RaphaelCheenath S.V.D. v. State of Orissa and another[5] would be useful. Inthe said case, while dealing with the issue of communal violence, theCourt observed that the State Government shall do well to enquire intoand find the causes for such communal unrest and strengthen the fabricof the society. It further stated that strengthening of policeinfrastructure in the district would undoubtedly help in curbing anyrecurrence of such communal violence. Emphasis was also laid onsimultaneous peace-building measures.

17. There can be no shadow of doubt that the authorities whichare conferred with the responsibility to maintain law and order in theStates have the principal obligation to see that vigilantism, be it cowvigilantism 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 ownhands, it ushers in anarchy, chaos, disorder and, eventually, there is anemergence of violent society. Vigilantism cannot, by any stretch ofimagination, be given room to take shape, for it is absolutely perversenotion. We may note here that certain applications for intervention andwritten notes have been filed in this regard supporting the same on the3 (2011) 7 SCC 5474 (2014) 5 SCC 2525 (2016) 9 SCC 682

Abasis that there is cattle smuggling and cruel treatment to animals. Inthis context, suffice it to say that it is the law enforcing agencies whichhave to survey, prevent and prosecute. No one has the authority to enterinto the said field and harbour the feeling that he is the law and thepunisher himself. country where the rule of law prevails does notallow any such thought. It, in fact, commands for ostracisation of suchBthoughts with immediacy.

18. Lynching is an affront to the rule of law and to the exaltedvalues of the Constitution itself. We may say without any fear ofcontradiction that lynching by unruly mobs and barbaric violence arisingout of incitement and instigation cannot be allowed to become the orderCof the day. Such vigilantism, be it for whatever purpose or borne out ofwhatever cause, has the effect of undermining the legal andformal institutions of the State and altering the constitutional order. Theseextrajudicial attempts under the guise of protection of the law have to benipped in the bud; lest it would lead to rise of anarchy and lawlessnessDwhich would plague and corrode the nation like an epidemic. Thetumultuous dark clouds of vigilantism have the effect of shrouding theglorious ways of democracy and justice leading to tragic breakdown ofthe law and transgressing all forms of civility and humanity. Unless theseincidents are controlled, the day is not far when such monstrosity in thename of self-professed morality is likely to assume the shape of hugeEcataclysm. It is in direct violation of the quintessential spirit of the rule oflaw and of the exalted faiths of tolerance and humanity.19. Mob vigilantism and mob violence have to be prevented bythe governments by taking strict action and by the vigil society whoought to report such incidents to the state machinery and the policeFinstead of taking the law into their own hands. Rising intolerance andgrowing polarisation expressed through spate of incidents of mob violencecannot be permitted to become the normal way of life or the normalstate of law and order in the country. Good governance and nation buildingrequire sustenance of law and order which is intricately linked to theGpreservation of the marrows of our social structure. In such situation,the State has sacrosanct duty to protect its citizens from unruly elementsand perpetrators of orchestrated lynching and vigilantism with utmostsincerity and true commitment to address and curb such incidents whichmust reflect in its actions and schemes.

20. Hate crimes as product of intolerance, ideological dominanceand prejudice ought not to be tolerated; lest it results in reign of terror.Extra judicial elements and non-State actors cannot be allowed to takethe place of law or the law enforcing agency. fabricated identity withbigoted approach sans acceptance of plurality and diversity results inprovocative sentiments and display of reactionary retributive attitudetransforming itself into dehumanisation of human beings. Such anatmosphere is one in which rational debate, logical discussion and soundadministration of law eludes thereby manifesting clear danger to variousfreedoms including freedom of speech and expression. One man’sfreedom of thought, action, speech, expression, belief, conscience andpersonal choices is not being tolerated by the other and this is due to lackof objective rationalisation of acts and situations. In this regard, it hasbeen aptly said:-

“Freedom of speech is principal pillar of free government;When this support is taken away, the constitution of free societyis dissolved and tyranny is erected on its ruins.”[6]

21. Freedom of speech and expression in different forms is theélan vital of sustenance of all other rights and is the very seed forgerminating the growth of democratic views. Plurality of voices celebratesthe constitutionalist idea of liberal democracy and ought not to besuppressed. That is the idea and essence of our nation which cannot be,to borrow line from Rabindranath Tagore, “broken up into fragmentsby narrow domestic walls” of caste, creed, race, class or religion.Pluralism and tolerance are essential virtues and constitute the buildingblocks of truly free and democratic society. It must be emphaticallystated that dynamic contemporary constitutional democracy imbibesthe essential feature of accommodating pluralism in thought and approachso as to preserve cohesiveness and unity. Intolerance arising out of adogmatic mindset sows the seeds of upheaval and has chilling effecton freedom of thought and expression. Hence, tolerance has to be fosteredand 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 different context, referred to thedecision of the European Court of Human Rights in Handyside v. United

6 Benjamin Franklin, On Freedom of Speech and the Press, from the Pennsylvania Gazette, November, 1737

7 (1989) 2 SCC 574

AKingdom[8]wherein it has been held thus in the context of Article 10 ofthe European Convention on Human Rights (ECHR):-

“The court’s supervisory functions oblige it to pay the utmostattention to the principles characterizing ‘democratic society’.Freedom of expression constitutes one of the essential foundationsBof such society, one of the basic conditions for its progress andfor the development of every man. Subject to Article 10(2), it isapplicable not only to ‘information’ or ‘ideas’ that are favourablyreceived or regarded as inoffensive or as matter of indifference,but also to those that offend, shock or disturb the State or anysector of the population. Such are the demands of that pluralism,Ctolerance and broadmindedness without which there is no

‘democratic society’.”

23. In rights based approach to constitutional legitimacy, theright to life and liberty is considered paramount and, therefore, democraticgovernments must propel and drive towards stronger foothold for libertiesDso as to ensure sustenance of higher values of democracy thereby pavingthe path for spontaneous constitutional order. Crime knows no religionand neither the perpetrator nor the victim can be viewed through thelens of race, caste, class or religion. The State has positive obligationto protect the fundamental rights and freedoms of all individualsEirrespective of race, caste, class or religion. The State has the primaryresponsibility to foster secular, pluralistic and multi-culturalistic socialorder so as to allow free play of ideas and beliefs and co-existence ofmutually contradictory perspectives. Stifling free voices can never bodewell for true democracy. It is essential to build societies which embracediversity in all spheres and rebuild trust of the citizenry in the StateFmachinery.

24. Lynching and mob violence are creeping threats that maygradually take the shape of Typhon-like monster as evidenced in thewake of the rising wave of incidents of recurring patterns by frenziedmobs across the country instigated by intolerance and misinformed byGcirculation of fake news and false stories. There has been an unfortunatelitany of spiralling mob violence and agonized horror presenting grimand gruesome picture that compels us to reflect whether the populaceof great Republic like ours has lost the values of tolerance to sustain adiverse culture. Besides, bystander apathy, numbness of the mute

spectators of the scene of the crime, inertia of the law enforcingmachinery to prevent such crimes and nip them in the bud andgrandstanding of the incident by the perpetrators of the crimes includingin the social media aggravates the entire problem. One must constantlyremind oneself that an attitude of morbid intolerance is absolutelyintolerable and agonizingly painful.

25. Lynching, at one point of time, was so rampant in the UnitedStates that Mark Twain had observed in his inimitable style that it hadbecome “the United States of Lyncherdom”. The sarcasm is apparent.

26. In the obtaining situation, the need to preserve and maintainunity amongst the fellow citizens of our country, who represent differentcastes, creed and races, follow different religions and use multiplelanguages, ought to be discussed and accentuated. It is requisite to statethat our country must sustain, exalt and celebrate the feeling of solidarityand harmony so that the spirit of oneness is entrenched in the collectivecharacter. Sans such harmony and understanding, we may unwittinglypave the path of disaster.27. In St. Stephen’s College v. University of Delhi[9], whileemphasizing on the significance of ‘Unity in Diversity’, the Court hasobserved that the aim of our Constitution is unity in diversity and toimpede any fissiparous tendencies for enriching the unity amongst Indiansby assimilating the diversities. The meaning of diversity in its connotativeexpanse of the term would include geographical, religious, linguistic, racialand cultural differences. It is absolutely necessary to underscore thatIndia represents social, religious and cultural diversity.

28. ‘Unity’ in the context of nation means unity amongst thefellow citizens. It implies integration of the citizens whereby the citizensembrace feeling of ‘We’ with sense of bonding with fellow citizenswhich would definitely go long way in holding the Indian societytogether. Emile Durkheim, French sociologist, has said that when unityis based on heterogeneity and diversity, it can very well be described asorganic solidarity. Durkheim’s view would be acceptable in the contextof the Indian society as it exhibits completely organic social solidarity.

29. The Court in Sri Adi Visheshwara of Kashi VishwanathTemple, Varanasi and others v. State of U.P. and others[10]. has

9 (1992) 1 SCC 558

10(1997) 4 SCC 606

Ahighlighted that religious tolerance is an important facet of ‘Unity inDiversity’ and observed thus:-

“Unity in diversity is the Indian culture and ethos. The toleranceof all religious faiths, respect for each other’s religion are ourethos. These pave the way and foundation for integration andBnational unity and foster respect for each others religion; religiousfaith and belief. Integration of Bharat is, thus, its arch.”

[Emphasis supplied]

30. In State of Karnataka and another v. Dr. Praveen BhaiThogadia[11], stress has been laid on ‘Unity in Diversity’ treating it as theCideal way of life considering that our nation is unification of peoplecoming from diverse cultures, religions and races. The Court furtherwent on to say that our nation has the world’s most heterogeneous societyhaving rich heritage where the Constitution is committed to the highideas of socialism, secularism and the integrity of the nation and problems,Dif any, that arise on the path of the nation’s progress are mostly solvedon the basis of human approaches and harmonious reconciliation ofdifferences. The following observations made by the Court in theaforesaid case with regard to the need to preserve the unified socialfabric are also important:-

E“It is, therefore, imperative that if any individual or group of persons,by their action or caustic and inflammatory speech are bent uponsowing seed of mutual hatred, and their proposed activities arelikely to create disharmony and disturb equilibrium, sacrificingpublic peace and tranquility, strong action, and more so preventiveactions are essentially and vitally needed to be taken. Any speechFor action which would result in ostracization of communal harmonywould destroy all those high values which the Constitution aimsat. Welfare of the people is the ultimate goal of all laws, and Stateaction and above all the Constitution. They have one commonobject, that is to promote well being and larger interest of theGsociety as whole and not of any individual or particular groupscarrying any brand names. It is inconceivable that there can besocial well being without communal harmony, love for each otherand hatred for none.”

[Emphasis added]

31. Unity in Diversity must be recognized as the most potentweapon in India’s armoury which binds different and varied kinds ofpeople in the solemn thread of humanity. This diversity is the strength ofour nation and for realizing this strength, it is sine qua non that wesustain it and shun schismatic tendencies. It has to be remembered thatthe unique feature of ‘Unity in Diversity’ inculcates in the citizens thevirtue of respecting the opinions and choices of others. Such respectimbibes the feeling of acceptance of plurality and elevates the idea oftolerance by promoting social cohesion and infusing sense of fraternityand 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 onereligion or other prevalent in our pluralistic society. It has no directconcern with the faiths of the people but is deeply obligated notmerely to preserve and protect society against breaches of thepeace and violations of public order but also to create conditionswhere the sentiments and feelings of people of diverse or opposingbeliefs and bigotries are not so molested by ribald writings oroffence publications as to provoke or outrage groups into possibleviolent action. Essentially, good government necessitates peaceand security..”

Thus, for our nation to survive, without being whittled down, it is anecessary precondition that all must embrace the sentiment that theyare the essential constituents of diversity that galvanizes for preservationof unity and respects pluralistic perceptions in cohesion with theconstitutional ethos.

33. Having stated about the need of tolerance in pluralistic society,we may refer with profit that the Court in D.K. Basu v. State of WestBengal[13], after referring to the authorities in Joginder Kumar v. Stateof 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 downcertain guidelines to be followed in cases of arrest and detention. In

12 (1976) 4 SCC 21313(1997) 1 SCC 41614(1994) 4 SCC 26015(1993) 2 SCC 74616(1995) 4 SCC 262

AArnesh Kumar v. State of Bihar and another[17], this Court referred toSection 41-A of the Code of Criminal Procedure and ruled thus:-

“7.3. In pith and core, the police officer before arrest must put aquestion to himself, why arrest? Is it really required? What purposeit will serve? What object it will achieve? It is only after theseBquestions are addressed and one or the other conditions asenumerated above is satisfied, the power of arrest needs to beexercised. In fine, before arrest first the police officers shouldhave reason to believe on the basis of information and materialthat the accused has committed the offence. Apart from this, thepolice officer has to be satisfied further that the arrest is necessaryCfor 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 lawprovides procedure for arrest and equally for investigation and theconsequential trial. That is what has been interpreted by this CourtDwhile dealing with Article 21 of the Constitution. Thus, the rights of thecitizens cannot be destroyed in an unlawful manner. As the investigatingagency has to show fidelity to the statutory safeguards, similarly, everycitizen is required to express loyalty to law and the legal procedure. Noone, and we repeat no one, is entitled to take the law into his own handsEand annihilate anything that the majesty of law protects. When thevigilantes involve themselves in lynching or any kind of brutality, they, infact, put the requisite accountability of citizen to law on the ventilator.That cannot be countenanced. Such core groups cannot be allowed toact as they please. They cannot be permitted to indulge in freezing thepeace of life on the basis of their contrived notions. They are no one toFpunish person by ascribing any justification. The stand and stance putforth in the interlocutory applications filed by the impleaded parties intendto convey certain contraventions of the provisions of statutory law butthe prescription of punishment does not empower any one to authorizehimself to behave as the protector of law and impose punishment as perGhis choice and fancy. That is the role and duty of the law enforcingagencies known to law. No one else can be permitted to expropriatethat role. It has to be clearly understood that self-styled vigilantes haveno role in that sphere. Their only right is to inform the crime, if any, tothe law enforcing agency. It is the duty of the law enforcement agencies

and the prosecutors to bring the accused persons before the lawadjudicating authorities who, with their innate training and sense of justice,peruse the materials brought on record, follow the provisions of law andpass the judgment. In the scheme of things, the external forces cannotassume the role of protectors and once they pave the said path, theyassociate themselves with criminality and bring themselves in the categoryof criminals. It is imperative for them to remember that they aresubservient to the law and cannot be guided by notions or emotions orsentiments or, for that matter, faith.

35. In this context, we may reproduce passage from ShaktiVahini (supra) which, though pronounced in different context, hascertain significance:-

“The ‘Khap Panchayats’ or such assembly should not take thelaw into their hands and further cannot assume the character ofthe law implementing agency, for that authority has not beenconferred upon them under any law. Law has to be allowed tosustain by the law enforcement agencies. For example, when acrime under Indian Penal Code is committed, an assembly of peoplecannot impose the punishment. They have no authority. They areentitled to lodge an FIR or inform the police. They may alsofacilitate so that the Accused is dealt with in accordance withlaw. But, by putting forth stand that they are spreading awareness,they really can neither affect others’ fundamental rights nor coverup their own illegal acts. It is simply not permissible. In fact, it hasto be condemned as an act abhorrent to law and, therefore, it hasto stop. Their activities are to be stopped in entirety. There is noother alternative. What is illegal cannot commend recognition oracceptance.”

36. We may now refer to some of the authorities of the AmericanCourts which have dealt with the menace of lynching which, at onepoint of time, was very rampant in the American society. The AmericanCourts deplored this menace and dealt it with iron hands so as to eradicatethe same. Ex parte Riggins[18] was case involving the lynching of aNegro citizen who had been imprisoned on the charge of murder. Whilehe was imprisoned in jail, the mob removed him and lynched him byhanging. Thereafter, certain mobsters involved in the said hanging were

18(C.C.N.D. Ala., 1904) 134 Fed. 404

Aindicted. petition of habeas corpus was filed seeking the release of thesaid mobsters on the ground that there was no law in the United Stateswhich legalized the indictment of the said mobsters. While disposing ofthe said habeas corpus petition and upholding the indictment, ThomasGoode Jones, J. made the following relevant observations:-

B“When private individual takes person charged with crimefrom the custody of the state authorities to prevent the state fromaffording him due process of law, and puts him to death to punishthe crime and to prevent the enjoyment of such right, it is violentusurpation and exercise, in the particular case, of the very functionwhich the Constitution of the United States itself, under this clauseC[the 14th Amendment] directs the state to perform in the interestof the citizen. Such lawlessness differs from ordinary kidnappingand murder, in that dominant intent and actual result is usurpationand exercise by private individuals of the sovereign functions ofadministering justice and punishing crime, in order to defeat theDperformance of duties required of the state by the supreme lawof the land. The inevitable effect of such lawlessness is not merelyto prevent the state from performing its duty, but to deprive theaccused of all enjoyment, or opportunity of enjoyment of rightswhich this clause of the Constitution intended to work out for himby the actual performance by the state of all things included inEaffording due process of law, which enjoyment can be workedout in no other way in his individual case. Such lawlessness defeatsthe performance of the state’s duty, and the opportunity of thecitizen to have the benefit of it, quite as effectually and far morefrequently than vicious laws, or the partiality or the inefficiency ofFstate officers in the discharge of their constitutional duty. It is agreat, notorious, and growing evil, which directly attacks thepurpose which the Constitution of the United States had in viewwhen it enjoined the duty upon the state.”

37. In Wilson v. Garcia[19], the Supreme Court of the United StatesGreferred to the debates of the Parliament while enacting the Civil RightsAct of 1871 which are relevant in the present context and read as follows:-

“While murder is stalking abroad in disguise, while whippings andlynchings and banishing have been visited upon unoffendingAmerican citizens, the local administrations have been found

H19 471 U.S. 261 (1985)

inadequate or unwilling to apply the proper corrective.Combinations, darker than the night that hides them, conspiracies,wicked as the worst of felons could devise, have gone unwhippedof justice. Immunity is given to crime, and the records of publictribunals are searched in vain for any evidence of effectiveredress.[3]”

38. Thus, the decisions of this Court as well as the authoritiesfrom other jurisdictions clearly show that every citizen has to abide bythe law and the law never confers the power on citizen to become thelaw unto himself or take law into his hands. The idea is absolutelydespicable, the thought is utterly detestable and the action is obnoxiousand completely hellish. It is nauseatingly perverse. In the aforesaidhearing, Mr. Hegde, as stated earlier, gave the preventive, remedial andpunitive measures to be laid down as guidelines by this Court.Ms. Indira Jaising, learned senior counsel, has placed reliance on PravasiBhalai Sangathan v. Union of India and others[20]to submit that theseguidelines do come under Sections 153 and 295A IPC and this Court haselaborately dealt with the same.39. There is no dispute that the act of lynching is unlawful but weare not concerned with any specific case since it has become sweepingphenomenon with far-reaching impact. It is our constitutional duty totake call to protect lives and human rights. There cannot be righthigher than the right to live with dignity and further to be treated withhumanness that the law provides. What the law provides may be takenaway by lawful means; that is the fundamental concept of law. No oneis entitled to shake the said foundation. No citizen can assault the humandignity of another, for such an action would comatose the majesty oflaw. In civilized society, it is the fear of law that prevents crimes.Commencing from the legal space of democratic Athens till the legalsystem of modern societies today, the law makers try to prevent crimesand make the people aware of the same but some persons who developmasterly skill to transgress the law jostle in the streets that eventuallyleads to an atmosphere which witnesses bloodshed and tears. When thepreventive measures face failure, the crime takes place and then therehave to be remedial and punitive measures. Steps to be taken at everystage for implementation of law are extremely important. Hence, theguidelines are necessary to be prescribed.

A40. In view of the aforesaid, we proceed to issue the followingguidelines:-

A. Preventive Measures

(i) The State Governments shall designate, senior police officer,not below the rank of Superintendent of Police, as Nodal Officer in eachBdistrict. Such Nodal Officer shall be assisted by one of the DSP rankofficers in the district for taking measures to prevent incidents of mobviolence and lynching. They shall constitute special task force so as toprocure intelligence reports about the people who are likely to commitsuch crimes or who are involved in spreading hate speeches, provocativeCstatements and fake news.

(ii) The State Governments shall forthwith identify Districts, Sub-Divisions and/or Villages where instances of lynching and mob violencehave been reported in the recent past, say, in the last five years. Theprocess of identification should be done within period of three weeksDfrom the date of this judgment, as such time period is sufficient to get thetask done in today’s fast world of data collection.

(iii) The Secretary, Home Department of the concerned Statesshall issue directives/advisories to the Nodal Officers of the concerneddistricts for ensuring that the Officer In-charge of the Police Stations ofEthe identified areas are extra cautious if any instance of mob violencewithin their jurisdiction comes to their notice.

(iv) The Nodal Officer, so designated, shall hold regular meetings(at least once month) with the local intelligence units in the districtalong with all Station House Officers of the district so as to identify theexistence of the tendencies of vigilantism, mob violence or lynching inFthe district and take steps to prohibit instances of dissemination ofoffensive material through different social media platforms or any othermeans for inciting such tendencies. The Nodal Officer shall also makeefforts to eradicate hostile environment against any community or castewhich is targeted in such incidents.

(v) The Director General of Police/the Secretary, HomeDepartment of the concerned States shall take regular review meetings(at least once quarter) with all the Nodal Officers and State PoliceIntelligence heads. The Nodal Officers shall bring to the notice of theDGP any inter-district co-ordination issues for devising strategy toHtackle lynching and mob violence related issues at the State level.

(vi) It shall be the duty of every police officer to cause mob todisperse, by exercising his power under Section 129 of CrPC, which, inhis opinion, has tendency to cause violence or wreak the havoc oflynching in the disguise of vigilantism or otherwise.

(vii) The Home Department of the Government of India musttake initiative and work in co-ordination with the State Governments forsensitising the law enforcement agencies and by involving all the stakeholders to identify the measures for prevention of mob violence andlynching against any caste or community and to implement theconstitutional goal of social justice and the Rule of Law.

(viii) The Director General of Police shall issue circular to theSuperintendents of Police with regard to police patrolling in the sensitiveareas keeping in view the incidents of the past and the intelligence obtainedby the office of the Director General. It singularly means that thereshould be seriousness in patrolling so that the anti-social elements involvedin such crimes are discouraged and remain within the boundaries of lawthus fearing to even think of taking the law into their own hands.

(ix) The Central and the State Governments should broadcast onradio and television and other media platforms including the officialwebsites of the Home Department and Police of the States that lynchingand mob violence of any kind shall invite serious consequence under thelaw.

(x) It shall be the duty of the Central Government as well as theState Governments to take steps to curb and stop dissemination ofirresponsible and explosive messages, videos and other material on varioussocial media platforms which have tendency to incite mob violenceand lynching of any kind.

(xi) The police shall cause to register FIR under Section 153A ofIPC and/or other relevant provisions of law against persons whodisseminate irresponsible and explosive messages and videos havingcontent which is likely to incite mob violence and lynching of any kind.

(xii) The Central Government shall also issue appropriatedirections/advisories to the State Governments which would reflect thegravity and seriousness of the situation and the measures to be taken.

AB. Remedial Measures

(i) Despite the preventive measures taken by the State Police, if itcomes to the notice of the local police that an incident of lynching ormob violence has taken place, the jurisdictional police station shallimmediately cause to lodge an FIR, without any undue delay, under theBrelevant provisions of IPC and/or other provisions of law.

(ii) It shall be the duty of the Station House Officer, in whosepolice station such FIR is registered, to forthwith intimate the NodalOfficer in the district who shall, in turn, ensure that there is no furtherharassment of the family members of the victim(s).

(iii) Investigation in such offences shall be personally monitoredby the Nodal Officer who shall be duty bound to ensure that theinvestigation is carried out effectively and the charge-sheet in such casesis filed within the statutory period from the date of registration of theFIR or arrest of the accused, as the case may be.

(iv) The State Governments shall prepare lynching/mob violencevictim compensation scheme in the light of the provisions of Section357A of CrPC within one month from the date of this judgment. In thesaid scheme for computation of compensation, the State Governmentsshall give due regard to the nature of bodily injury, psychological injuryEand loss of earnings including loss of opportunities of employment andeducation and expenses incurred on account of legal and medicalexpenses. The said compensation scheme must also have provisionfor interim relief to be paid to the victim(s) or to the next of kin of thedeceased within period of thirty days of the incident of mob violence/lynching.

(v) The cases of lynching and mob violence shall be specificallytried by designated court/Fast Track Courts earmarked for that purposein each district. Such courts shall hold trial of the case on day to daybasis. The trial shall preferably be concluded within six months from thedate of taking cognizance. We may hasten to add that this direction shallGapply to even pending cases. The District Judge shall assign those casesas far as possible to one jurisdictional court so as to ensure expeditiousdisposal thereof. It shall be the duty of the State Governments and theNodal Officers in particular to see that the prosecuting agency strictlycarries out its role in appropriate furtherance of the trial.

(vi) To set stern example in cases of mob violence and lynching,upon conviction of the accused person(s), the trial court must ordinarilyaward maximum sentence as provided for various offences under theprovisions of the IPC.

(vii) The courts trying the cases of mob violence and lynchingmay, on application by witness or by the public prosecutor in relation tosuch 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 ofmob violence and lynching shall be given timely notice of any courtproceedings and he/she shall be entitled to be heard at the trial in respectof applications such as bail, discharge, release and parole filed by theaccused persons. They shall also have the right to file written submissionson conviction, acquittal or sentencing.

(ix) The victim(s) or the next of kin of the deceased in cases ofmob violence and lynching shall receive free legal aid if he or she sochooses and engage any advocate of his/her choice from amongst thoseenrolled in the legal aid panel under the Legal Services Authorities Act,1987.

C. Punitive Measures

(i) Wherever it is found that police officer or an officer of thedistrict administration has failed to comply with the aforesaid directionsin order to prevent and/or investigate and/or facilitate expeditious trial ofany crime of mob violence and lynching, the same shall be considered asan act of deliberate negligence and/or misconduct for which appropriateaction must be taken against him/her and not limited to departmentalaction under the service rules. The departmental action shall be taken toits logical conclusion preferably within six months by the authority of thefirst 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 actionagainst the concerned officials if it is found that (i) such official(s) didnot prevent the incident, despite having prior knowledge of it, or (ii)where the incident has already occurred, such official(s) did not promptlyapprehend and institute criminal proceedings against the culprits.

21(2011) 6 SCC 405

A41. The measures that are directed to be taken have to be carriedout within four weeks by the Central and the State Governments. Reportsof compliance be filed within the said period before the Registry of thisCourt.

42. We may emphatically note that it is axiomatic that it is theBduty of the State to ensure that the machinery of law and order functionsefficiently and effectively in maintaining peace so as to preserve ourquintessentially secular ethos and pluralistic social fabric in democraticset-up governed by rule of law. In times of chaos and anarchy, the Statehas to act positively and responsibly to safeguard and secure theconstitutional promises to its citizens. The horrendous acts of mobocracyCcannot be permitted to inundate the law of the land. Earnest action andconcrete steps have to be taken to protect the citizens from the recurrentpattern of violence which cannot be allowed to become “the new normal”.The State cannot turn deaf ear to the growing rumblings of its People,since its concern, to quote Woodrow Wilson, “must ring with the voicesDof the people.” The exigencies of the situation require us to sound aclarion call for earnest action to strengthen our inclusive and all-embracingsocial order which would, in turn, reaffirm the constitutional faith. Weexpect nothing more and nothing less.

43. Apart from the directions we have given hereinbefore andEwhat we have expressed, we think it appropriate to recommend to thelegislature, that is, the Parliament, to create separate offence forlynching and provide adequate punishment for the same. We have saidso as special law in this field would instill sense of fear for lawamongst the people who involve themselves in such kinds of activities.There can be no trace of doubt that fear of law and veneration for theFcommand of law constitute the foundation of civilized society.

44. Let the matters be listed on 20[th] August, 2018 for furtherdirections.

GNidhi Jain

Directions issued.