Tehseen S. Poonawalla vs Union Of India and Others

Tehseen S. Poonawalla vs Union Of India and Others

Author: Ayushi Verma

Edited by: Sulesh Choudhary

ABSTRACT

The present case law is related to the matter of cow vigilantism and mob violence. Cow vigilantism and mob violence caused a lot of disturbances in the Country. Many people who were not even guilty lost their lives. Some got severely injured. Therefore, a writ petition was filed in the Supreme Court in August 2016. An action was sought from the court to prevent the violence and also certain cow protection laws were challenged. The Supreme Court of India ruled that no individuals or groups can take the law into their own hands and punish the victims illegally. The Court also stressed the point that it is the duty of the state to protect the rights of the citizens and prevent crime. The Court also laid down certain guidelines that shall be followed by states with regard to the prevention of mob lynching.

Keywords: – Cow Vigilantism, Mob Lynching, Constitution of India, Article 21, Cow protection laws

CASE DETAILS

a)      Case Name/ Judgement Cause Title

Tehseen S. Poonawalla Vs. Union of India and others

b)     Case Number

Writ Petition ( Civil ) No. 754 of 2016

c)      Petitioner

Tehseen S. Poonawalla

d)     Respondent

Union of India and others

e)      Judgement Date

17th July, 2018

f)       Court

Supreme Court of India

g)      Quorum / Constitution of Bench

Justice Dipak Misra, Justice D.Y. Chandrachud,   Justice A.M. Khanwilkar

h)     Author / Name of Judges

Dipak Mishra

i)       Citation

(2018) 9 SCC 501, AIR 2018 SC 3354

j)       Legal Provisions Involved

 

·         Articles – 15, 21, 32, 256 and 257 of the Constitution of India

·         Section 12 of the Gujarat Animal Prevention Act, 1954

·         Section 13 of the Maharashtra Animal Prevention Act, 1976

·         Section 15 of the Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964

 

INTRODUCTION AND BACKGROUND OF THE CASE

Laws are made for the well-being and protection of the citizens. Citizens are required to abide by the law and one who violates the law needs to be punished. In recent years there has been a rapid increase in cases of Mob Lynching. The main cause behind the attack by mobs is Cow Vigilantism. The present Case law is related to cow vigilantism and other cases of mob lynching and how it was tackled.

  • Mob Lynching

Mob lynching is a horrifying act where a group of people takes the law into their own hands to punish the victims (suspect) illegally. This is a violation of Article 21[1] of the Constitution of India which deals with the Right to life and Personal liberty.

  • Cow Vigilantism

Cow Vigilantism or Cow Vigilante force is the use of physical force in the name of cow protection by blaming them for cow slaughter. Such killings mainly aimed the minorities such as Muslims and Dalits.

BACKGROUND OF THE CASE

In 2015, there was a huge rise in the incidents of cow vigilantism in India, which was based on rumours and cultural beliefs. That happened because there was supposition that the victims were consuming beef, which was false. Some of the incidents are illustrated below: –  

  • In 2015, a person named Mohammed Akhlaq was attacked and killed by a mob of villagers on the pretext that he had stolen and slaughtered a calf. Later on, it was reported that he didn’t store the beef.
  • One of the recent cases of cow vigilantism is the case of Pehlu Khan. In this case, Pehlu Khan and his son were attacked on the doubt of smuggling of a cow.

 Also, some states such as Rajasthan, Uttar Pradesh, Maharashtra, Jharkhand, Gujarat, and Karnataka enacted laws that protect cow vigilantes from their illegal acts in the name of cow protection. These laws provide protection against the acts of a person done in good faith.

FACTS OF THE CASE

In the year 2016, due to the rise in the episodes of cow vigilantism and mob violence and several protests in Delhi, Mumbai, Bangalore, Chennai, Lucknow, and Allahabad among other parts of the country, Tehseen S. Poonawalla, a social activist and lawyer filed a writ petition in the Supreme Court of India under Article 32[2] alleging the incidents of lynching and mob violence by so-called Cow vigilante groups and organizations. This petition was filed to compel the respondent states to take necessary actions against these groups and organizations. Also, the petitioner sought action against the Cow vigilante groups and organizations for uploading violent content on social media. Furthermore, the provisions of Section 12[3] of the Gujarat Animal Prevention Act, 1954, Section 13[4] of the Maharashtra Animal Prevention Act, 1976 , and Section 15[5] of the Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964 were also challenged.

LEGAL ISSUES RAISED

  1. Whether the States and Centre have a duty to develop immediate action plans to be undertaken against these violent cow protection mobs?
  2. Whether the provisions of 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 unconstitutional?

PETITIONER / APPELLANT’S ARGUMENTS

The counsels for Petitioner / Appellant submitted that:

  1. Any person or group should be prevented from taking the law into their own hands and should not indulge in any kind of violence on the perception of crime.
  2. Mob lynching and cow vigilantism violate Article 21[6].
  • The Central government should issue directions to states to maintain law and order in the exercise of the power conferred to it under Articles 256 and 257[7] of the Constitution of India. It is the duty of both the State and the Centre to ensure that minorities are not targeted due to misinformation and hatred, and stringent actions are taken.

RESPONDENT’S ARGUMENTS

The counsels for Respondent submitted that:

  1. The central government cannot intervene in the matters of states, as law and order is a state subject.
  2. Also, the persons involved in the mob violence have been booked under criminal law and police took the necessary action against them.

RELATED LEGAL PROVISIONS

Article 21[8]: –

Protection of life and personal liberty                                

“No person shall be deprived of his life or personal liberty except according to procedure established by law”

Article 32[9]: – Remedies for enforcement of rights conferred by this Part[10] 

Article 32 provides that every citizen has the right to approach the Supreme Court for enforcement of the rights guaranteed by part 3rde. fundamental rights of the Constitution of India. Under this Article Supreme Court has the power to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrant , and certiorari.

Article 256[11]: – Obligation of States and the Union

According to Article 256, every state shall exercise its executive power in compliance with laws made by the Parliament and existing laws of such state. The executive power of the Union shall include the power to give directions to a state which may appear to the Government of India to be necessary

Article 257[12]: – Control of the Union over States in certain cases

According to Article 257, the executive power of the state shall not impede that of the Union and the executive power of the Union shall include the power to give directions to a state which may appear to the Government of India to be necessary, which is related to the construction and maintenance of means of communication which is of national or military importance, which is related to the measures to be taken for the protection of the railways within the State.

Section 12[13], Gujarat Animal Prevention Act;

Section 13[14] of the Maharashtra Animal Prevention Act;

Section 15[15] of the Karnataka Prevention of Cow Slaughter and Cattle Preservation Act – Protection of persons acting in good faith under the Act or rules-

 “No suit, prosecution or other legal proceedings shall be instituted against any person for anything which is in good faith done or intended to be done under this Act or the rules made there under”.

JUDGEMENT

RATIO DECIDENDI

The Supreme Court unambiguously held that: –

  1. It is the duty of the state to prevent crime and to ensure that the machinery of law and order functions efficiently in maintaining peace. The state must ensure that no individual or groups take the law into their own hands. Every individual shall inform the police as soon as there is a violation of the law. No trial shall take place on the streets. The state has the principal obligation to see the cow vigilantism or any other kind of violence. The government and vigil society shall take strict actions to prevent lynching and mob violence.
  2. Mob violence violates the rule of law and constitution particularly Article 21. It was laid down that the activities which amounted to mob violence and mob lynching must not be unnoticed and should be taken into consideration. (Case of Shakti Vahini v. Union of India[16] was cited).
  3. Articles 256 and 257 of the Constitution of India confer the powers on the Central Government to give directions to the state where it is necessary. Therefore, the Central Government has the power to intervene in the matter and issue directions to the State Government under Articles 256 and 257.

GUIDELINES

The Supreme Court issued certain guidelines to prevent Cow vigilantism and other cases of mob lynching. The following are the guidelines: –

  • Preventive measures:-
  1. A senior police officer shall be nominated as Nodal Officer not below the rank of Superintendent of Police in each district by the state government.
  2. The areas where cases of mob lynching have been reported shall be identified and the nodal officer has to be more cautious about the areas identified within their jurisdiction.
  3. Regular meetings shall be conducted by the Nodal Officer with the local intelligence.
  4. Every police officer shall cause a mob to diffuse, by exercising power under Section 129 of CrPC[17].
  5. Law enforcement agencies must be made strongest to identify the measures for the prevention of mob violence and lynching against any caste or community.
  6. The Central and State Governments should broadcast the serious consequences of lynching and mob violence under the law on radio and television and other media platforms.
  7. FIR shall be registered against persons who spread messages and videos which are likely to encourage mob violence and lynching of any kind under Section 153A of IPC[18] and other relevant provisions of law.
  • Remedial Measures: –
  1. Apart from the above measures, an FIR should be lodged without any delay if any case of mob lynching comes to the local police station’s notice.
  2. The Station House Officer has the duty to inform the Nodal Officer in the district who shall, in turn, ensure that there is no further harassment of the family members of the victim.
  3. Nodal Officer shall personally monitor the investigation of such offences.
  4. A mob violence victim compensation scheme shall be made in the light of the provisions of Section 357A[19] of CrPC.
  5. The cases of lynching and mob violence shall be specifically tried by designated court/Fast Track Courts and maximum sentence shall be awarded by the court.
  6. The Identity and the address of the witness shall be concealed.
  7. Notice of court proceedings shall be given to the victim or the next of kin of the deceased in cases of mob violence and lynching.
  8. Free Legal Aid shall be given to the victim or the next of kin of the deceased in cases of mob violence and lynching under the Legal Services Act[20].
  • Punitive Measures: –
  1. Where any police officer or an officer of the district administration has failed to comply with the aforesaid directions it shall be an act of deliberate negligence and/or misconduct and an action must be taken against him/her.
  2. As per the decision given in the case of Arumugam Servai v. State of Tamil Nadu[21], disciplinary action shall be taken against the concerned officers by the State firstly, if such officer did not try to prevent the incident despite having prior knowledge of that incident and secondly, if it is found that such officer did not institute criminal proceedings against the offender in case the incident has already occurred.

CONCLUSION

Every citizen has the right to freedom and to live peacefully. No citizen can take the law into his/her hands for the sake of the protection of cultural and religious values. The guidelines given in the present case are a serious reminder of the obligations of the state and society to uphold these values. At present the guidelines given by the Supreme Court is still applicable and the court continues to track its implementation. Also, a step should be taken by the parliament of India to make a separate legislation on Mob lynching to avoid any kind of ambiguity.

REFERENCES

ENDNOTES:

[1] Article 21, Constitution of India (1950)

[2] Article 32, Constitution of India (1950)

[3] Section 12, Gujarat Animal Prevention Act (1954)

[4] Section 13, Maharashtra Animal Prevention Act (1976)

[5] Section 15, Karnataka Prevention of Cow Slaughter and Cattle Preservation Act (1964)

[6] Article 21, Constitution of India (1950)

[7] Articles 256 and 257, Constitution of India (1950)

[8] Article 21, Constitution of India (1950)

[9] Article 32, Constitution of India (1950)

[10] That is part 3rd of the constitution of India referred to as Fundamental rights

[11] Article 256, Constitution of India (1950)

[12] Article 257, Constitution of India (1950)

[13] Section 12, Gujarat Animal Prevention Act, (1954)

[14] Section 13, the Maharashtra Animal Prevention Act (1976)

[15] Section 15, Karnataka Prevention of Cow Slaughter and Cattle Preservation Act (1964)

[16] (2018) 7 SCC 192

[17] Code of Criminal Procedure (1973)

[18] Indian Penal Code (1860)

[19] Code of Criminal Procedure (1973)

[20] Legal Services Act,1987

[21] (2011) 6 SCC 405