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Case Analysis Of Tehseen Poonawalla Vs Union Of India (2018)

Facts Of The Case
After the sudden increase in the number of Mob Lynching and the numerous incident of lynching and mob violence in the name of protection of the cow by the group of private individuals by setting aside law and by taking the enforcement in their own hand and punishing the violator on their own thinking and presumption and in the manner of way they like.

Thus distressed by the event like the hanging of two individuals at Latehar district of Jharkhand due to cow vigilantism, flogging of Dalit at Una, Gujrat, mob lynching of Pehlu khan due to cow vigilantism and the mob lynching of Akhlaq at Dadri, Uttar Pradesh, a social activist Tehseen Poonawalla distressed by all this filed a writ petition to resolve this issue.

Therefore the petitioner challenged the 6 state- Gujarat, Jharkhand, Karnataka, Maharashtra, Rajasthan, and Uttar Pradesh, cow protection law.
Petitioner wanted the all 6 respondent state to take strict and immediate action against all the cow protection groups who are indulged in cow vigilantism and were involved in violence which result in deaths of all the innocent on doubt.

The petitioner wanted to remove all the violent content posted on social media by this violent cow protection groups.
In The Supreme Court Of India(Before Dipak Misra, C.J. And A.M. Khanwilkar And Dr D.Y. Chandrachud, Jj.)
Tehseen S. Poonawalla����.Petetioner Versus Union Of India And Others��..Respondent
Decided on : 17 July 2018

In the Supreme Court of India
Issue To Be Determined:
  • Whether the state and centre should take strict and immediate action against the cow protection group indulged in violence?
  • Whether the state and centre should issue a writ to remove all the violent content posted on social media by this violent cow protection group?
  • Whether certain sections of acts which provide for the protection of cows, such as 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, are unconstitutional?
Arguments Of Petetioner:
  1. Mr. Sanjay R. Hegde, a learned senior counsel representing the petitioner in Writ Petition (Civil) No. 754 of 2016, argued that no person or vigilante group may engage in lynching activities based only on the belief that a crime has been committed. Aside from that, Mr. Hegde argues, the supremacy of law must be acknowledged and if a law specifies a penalty for a crime, it has the legal means to do so. It is necessary to adhere to the substantive and procedural protections. Mr. Hegde makes a strong case�one that cannot be supported�that the government must stop lynchings and other acts of mob violence, regardless of the justification. Punitive, corrective, and preventive methods are emphasised. He has relied on a recent ruling in Shakti Vahini v. Union1 of India in this regard.
  2. Learned Senior Counsel Ms. Indira Jaising represented the petitioner in Writ Petition (Civil) No. 732 of 2017. She brought up the statement made by Martin Luther King Jr. that although the law may not be able to win a man over to love, it may prevent him from being lynched. According to her, there has been a steady rise in the number of incidents in recent years, and as a result, members of minority communities' citizens have been the victims of targeted violence. This violence is primarily motivated by suspicions and occasionally false information that the victims were engaged in illicit cattle trade or other similar activities. The learned Senior Counsel has also made reference to a few particular lynching incidents. She also makes the case that the Central Government should be instructed to step in and use the authority granted by Articles 256 and 257 of the Constitution to give instructions to the State Governments.
  3. Ms. Indira Jaising strongly urges the Union and the States to take immediate legal action to put an end to the self-proclaimed and self-styled vigilantes who have been taking law unto themselves and targeting members of certain communities and lower social classes. Such behaviour is intolerable and should not be tolerated. She has further stated that throughout the states of Maharashtra, Gujarat, Rajasthan, Uttar Pradesh, Haryana, Karnataka, Madhya Pradesh, Jammu and Kashmir, and Delhi, there have been numerous lynching incidents, most of which have been carried out by vigilante groups. It is her stringent stand that action is required to be taken against the perpetrators when approached by the family members of the victim.
    Shakti Vahini vs Union of India, 2018, 7 SCC 192
  4. Ms Indira Jaising has canvassed that it is the foremost duty of the Central and the State Governments to ensure that the members of the minorities are not targeted by mob violence and vigilante groups and if the illegal actions of these lynchers are not totally curbed, there would be absolute chaos where any private individual can take law into his own hands for the enforcement of criminal law in accordance with his own judgment2.

Argument Of Respondent:
  • Mr Ranjit Kumar, learned Solicitor General appearing for the Union of India that the controversy relates to the States, law and order being a State subject. He further submits that the Union of India does not support the activities of the vigilantes.
  • Ms Hemantika Wahi, learned Standing Counsel for the State of Gujarat echoing the aforesaid submission contends that certain persons who were engaged in this kind of activity, especially the incident that has been referred to in the writ petition, have been booked for relevant offences and appropriate police action is taken against them.
  • Mr Tapesh Kumar Singh, learned counsel for the State of Jharkhand submits that appropriate legal action has been taken and the criminal cases have been instituted against the persons who have taken law unto their hands.

Relevant Legislation
  1. In Mohd. Haroon v. Union of India3, it has been clearly held that it is the responsibility of the State Administration in association with the intelligence agencies of both the State and the Centre to prevent recurrence of communal violence in any part of the State. If any officer responsible for maintaining law and order is found negligent, he/she should be brought within the ambit of law.
  2. Archbishop Raphael Cheenath S.V.D. v. State of Orissa4 would be useful. In the said case, while dealing with the issue of communal violence, the Court observed that the state:
    1. Tehseen S. Poonawalla v. Union of India, (2018) 9 SCC 501
    2. Mohd. Haroon v. Union of India, (2014) 5 SCC 252
    3. Archbishop Raphael Cheenath S.V.D. v. State of Orissa, (2016) 9 SCC 682

  3. Government shall do well to enquire into and find the causes for such communal unrest and strengthen the fabric of the society. It further stated that strengthening of police infrastructure in the district would undoubtedly help in curbing any recurrence of such communal violence. Emphasis was also laid on simultaneous peace-building measures.

    In St. Stephen's College v. University of Delhi 5, while emphasising on the significance of "Unity in Diversity", the Court has observed that the aim of our Constitution is unity in diversity and to impede any fissiparous tendencies for enriching the unity amongst Indians by assimilating the diversities. The meaning of diversity in its connotative expanse of the term would include geographical, religious, linguistic, racial and cultural differences. It is absolutely necessary to underscore that India represents a social, religious and cultural diversity.
  4. In State of Karnataka v. Praveen Bhai Thogadia 6, stress has been laid on "Unity in Diversity" treating it as the ideal way of life considering that our nation is a unification of people coming from diverse cultures, religions and races. The Court further went on to say that our nation has the world's most heterogeneous society having a rich heritage where the Constitution is committed to the high ideas of socialism, secularism and the integrity of the nation and problems, if any, that arise on the path of the nation's progress are mostly solved on the basis of human approaches and harmonious reconciliation of differences.
  5. State of U.P. v. Lalai Singh Yadav 7, The State, in India, is secular and does not take sides with one religion or other prevalent in our pluralistic society. It has no direct concern with the faiths of the people but is deeply obligated not merely to preserve and protect society against breaches of the peace and violations of public order but also to create conditions where the sentiments and feelings of people of diverse or opposing beliefs and bigotries are not so molested by ribald writings or offensive publications as to provoke or outrage groups into possible violent action. Essentially, good government necessitates peace and security�.
  6. St. Stephen's College v. University of Delhi, (1992) 1 SCC 558
  7. State of Karnataka v. Praveen Bhai Thogadia, (2004) 4 SCC 684
  8. State of U.P. v. Lalai Singh Yadav, (1976) 4 SCC 213

Analysis Of Relevant Argument
It is abundantly evident from this Court's decisions as well as those of authorities from other jurisdictions that every citizen is required to follow the law and that the law does not grant any citizen the authority to become the law unto himself or to impose law upon himself. The action is irritating and utterly horrible, the idea is abhorrent, and the thought is abhorrent.

It is grotesquely bizarre. As previously mentioned, Mr. Hegde provided the preventive, corrective, and punitive measures that this Court will use as guidelines during the aforementioned hearing. The learned Senior Counsel, Ms. Indira Jaising, has cited Pravasi Bhalai Sangathan v. Union of India8 to support her argument that these guidelines are in fact covered by Sections 153 and 295-A IPC.

The bench of the Supreme Court comprising Chief Justice Dipak Misra, A.M Khanwilkar, and Dr. D.Y. Chandrachud gave the judgement, in this case, the decisions of this Court as well as the authorities from other jurisdictions clearly show that every citizen has to abide by the law and the law never confers the power on a citizen to become the law unto himself or take law into his hands. The idea is absolutely despicable, the thought is utterly detestable and the action is obnoxious and completely hellish.

The Court issued temporary directives for highway patrols and the appointment of nodal officers. To preserve the spirit of diversity and unity, state governments ought to look into the reasons behind social unrest and promote tolerance. Lynching is a clear breach of the law and the Constitution. Art. 21 prohibits unlawful interference with citizens' rights. The third question, which concerned whether certain acts were unconstitutional, was not addressed by the Court.

The court issued certain guidelines to curb vigilantism:
Preventive Measures: State Governments should appoint nodal officers, directions are given for their functioning, police should disperse mobs under S.129 of CrPc, initiate FIRs under S.153A of IPC, Central and State governments should stop spread of information and broadcast the serious consequences of law for lynching and mob violence.

Shakti Vahini vs Union of India, 2018, 7 SCC 192
Remedial Measures: In case of any incidents, FIRs should be filed, and the Nodal officer informed, effective processing through fast track courts, victim compensation scheme of free legal aid.

Punitive Measures: Departmental action should be taken against officers who do not comply with the above measures as it will be seen as a case of misconduct or negligence and the action to be taken should reach a conclusion within six months.

The Court, as a parting conclusion, gave a recommendation to the Parliament to constitute a separate offence for lynching with adequate punishment.

The bench of the Supreme Court comprising Chief Justice Dipak Misra, A.M Khanwilkar, and Dr. D.Y. Chandrachud gave the judgement, basically the core tenant of the constitution are questioned and discussed which are article 21, 25, 19, 29. It was held that unity among the citizens that the feeling of oneness should be developed while having diversity among us by practicing tolerance.

Article 21 which discusses about the personal liberty thus promote the right to life and nobody has the right to take the law of land in his on hand to punish anyone thus there is a procedure of arrest, investigation and trail which should be seriously followed and no one has the authority to take the law in his own hand but has the duty to inform the law enforcing authority about the crime and let the authority take the due action. Thus the primary responsibility of the authority is to protect the fundamental right of each and every individual irrespective of caste, creed and religion.

The court thus came up with three guideline to curb the vigilantism; they are:
  1. Preventive Measures
  2. Remedial Measure
  3. Punitive Measure
Even though the Court issued strict orders to address the issue, there are still problems with its implementation.

The reason behind giving the judgement is the act caused by the violent group of protector of cow causes death of someone innocent without proper investigation and trial thus by taking law in hands by this group. Which causes the infringement of someone's fundamental right of right to liberty under article 21.

The court does not awarded punishment, court came up with certain guidelines which are yet to be implemented.
The case judgement was written on 17 July 2018.

Written By: Dilshad Alam (2nd Year Regular) - Jamia Millia Islamia

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