The horrendous acts of mobocracy cannot be permitted to inundate the law of the land. Earnest action and concrete steps have to be taken to protect the citizens from the recurrent pattern of violence which cannot be allowed to become “the new normal”.
It is the duty of the State to ensure that the machinery of law and order functions efficiently and effectively in maintaining peace so as to preserve our quintessentially secular ethos and pluralistic social fabric in a democratic set-up governed by rule of law. In times of chaos and anarchy, the State has to act positively and responsibly to safeguard and secure the constitutional promises to its citizens. The horrendous acts of mobocracy cannot be permitted to inundate the law of the land. Earnest action and concrete steps have to be taken to protect the citizens from the recurrent pattern of violence which cannot be allowed to become “the new normal”. The State cannot turn a deaf ear to the growing rumblings of its People, since its concern, to quote Woodrow Wilson, “must ring with the voices of the people.” The exigencies of the situation require us to sound a clarion call for earnest action to strengthen our inclusive and all-embracing social order which would, in turn, reaffirm the constitutional faith. We expect nothing more and nothing less.
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
(Dipak Misra, CJI.) (A.M. Khanwilkar, J.) (Dr. D.Y. Chandrachud, J.)
July 17, 2018
WRIT PETITION (CIVIL) NO. 754 OF 2016
Tehseen S. Poonawalla ...Petitioner(s)
Versus
Union of India and others ...Respondent(s)
WITH
WRIT PETITION (CIVIL) N0. 764 OF 2016
WRIT PETITION (CIVIL) N0. 768 OF 2016
WRIT PETITION (CIVIL) N0. 732 OF 2017
WRIT PETITION (CRIMINAL) NO. 122 OF 2017
JUDGMENT
Dipak Misra, CJI
Law, enacted for the benefit of the society by conferring rights on the
citizens and to regulate social behaviour in many a sphere, is required to be
implemented by the law enforcing agencies and the citizens are duty bound to
follow the law treating it as sacred. Law has to be regarded as the foundation
of a civilized society. The primary goal of law is to have an orderly society where
the citizenry dreams for change and progress is realized and the individual
aspiration finds space for expression of his/her potential. In such an
atmosphere while every citizen is entitled to enjoy the rights and interest
bestowed under the constitutional and statutory law, he is also obligated to
remain obeisant to the command of law. It has been stated in Krishnamoorthy
v. Sivakumar and others, (2015) 3
SCC 467 “the law, the mightiest sovereign
in a civilized society”. The majesty of law cannot be sullied simply because an
individual or a group generate the attitude that they have been empowered by
the principles set out in law to take its enforcement into their own hands and
gradually become law unto themselves and punish the violator on their own
assumption and in the manner in which they deem fit. They forget that the
administration of law is conferred on the law enforcing agencies and no one is
allowed to take law into his own hands on the fancy of his “shallow spirit of
judgment”. Just as one is entitled to fight for his rights in law, the other is
entitled to be treated as innocent till he is found guilty after a fair trial.
No act of a citizen is to be adjudged by any kind of community under the guise
of protectors of law. It is the seminal requirement of law that an accused is
booked under law and is dealt with in accordance with the procedure without any
obstruction so that substantive justice is done. No individual in his own
capacity or as a part of a group, which within no time assumes the character of
a mob, can take law into his/their hands and deal with a person treating him as
guilty. That is not only contrary to the paradigm of established legal
principles in our legal system but also inconceivable in a civilized society
that respects the fundamental tenets of the rule of law. And, needless to say,
such ideas and conceptions not only create a dent in the majesty of law but are
also absolutely obnoxious.
2. It is worthy to note that the reliefs sought in all the writ petitions have
commonality, although the expression of language as well as the width of the
prayer is slightly different. What really emanates as the pivotal issue
requiring our contemplated consideration is the duty of this Court under the
constitutional framework to deal with the primary grievance that pertains to
cow vigilantism and other incidents of lynching or, if we may say so, targeted
violence and commission of offences affecting the human body and against
private and public property by mobs under the garb of self-assumed and
self-appointed protectors of law.
3. We shall state the facts in brief, for there are asseverations with
regard to numerous incidents of lynching and mob violence which need not be
specifically stated since we are going to issue certain directions covering the
arena of preventive, remedial and punitive measures. We shall note the
suggestions given by Mr. Sanjay R. Hegde, learned senior counsel in one of the
writ petitions. We may further state that we shall refer to the facts in Writ Petition
(Civil) No. 754 of 2016.
4. The petitioner, a social activist, has preferred this writ petition
under Article 32 of the Constitution for commanding the respondent-State Nos. 3
to 8 to take immediate and necessary action against the cow protection groups
indulging in violence; and further to issue a writ or direction to remove the
violent contents from the social media uploaded and hosted by the said groups.
There is also a prayer to declare Section 12 of the Gujarat Animal Prevention
Act, 1954, Section 13 of the Maharashtra Animal Prevention Act, 1976 and
Section 15 of the Karnataka Prevention of Cow Slaughter and Cattle Preservation
Act, 1964 as unconstitutional. Certain incidents have also been narrated in the
Writ Petition.
5. When the matter was taken up alongwith other matters on 21st July, 2017,
the Court, while not dealing with the third prayer, that is, for declaring
certain provisions of the statutes mentioned hereinabove as unconstitutional,
proceeded to state thus:-
"As far as the first prayer is concerned, on being asked, it is
submitted by Mr. Ranjit Kumar, learned Solicitor General appearing for the
Union of India that the controversy relates to the States, law and order being
a State subject. He further submits that the Union of India does not support
the activities of the vigilantes.
Ms. Hemantika Wahi, learned Standing Counsel for the State of Gujarat
echoing the aforesaid submission contends that certain persons who were engaged
in this kind of activity, especially the incident that has been referred to in
the writ petition, have been booked for relevant offences and appropriate
police action is taken against them. Mr. Tapesh Kumar Singh, learned counsel
for the State of Jharkhand submits that appropriate legal action has been taken
and the criminal cases have been instituted against the persons who have taken
law unto their hands.
At this juncture, it is submitted by Mr. Sanjay R. Hegde, learned
senior counsel appearing for the petitioner that the Union of India and the
State Governments should file their respective affidavits. Mr. Ranjit Kumar,
learned Solicitor General and the other learned counsel appearing for the
States pray for four weeks' time to file counter affidavit. Needless to say,
the counter affidavit shall also refer to the incidents, if any, referred to in
the writ petitions.
As far as the prayer No.2 is concerned, Mr. Ranjit Kumar, learned
Solicitor General and the learned counsel appearing for the various States
shall assist the Court as to how the activities of the vigilantes can be
absolutely curtailed and suggest ways and methods to work out the same."
6. Be it noted, when Writ Petition (Civil) No. 732 of 2017 was listed
along with the main writ petition, i.e., Writ Petition (Civil) No. 754 of 2016,
on 6th September,
2017, the Court, while issuing notice, noted the statement made by the learned
Solicitor General on the previous occasion and, thereafter, noted the
submissions advanced by Ms. Indira Jaising, learned senior counsel appearing
for the petitioner and Mr. Tushar Mehta, learned Additional Solicitor General
appearing for the Union of India. We think it appropriate to reproduce the said
order as it contains certain interim directions:-
"After referring to the same, it is urged by her that the law and
order enforcing agencies of the States have great responsibility not only to
register the First Information Report (FIR) after the incident takes place but
also see to it that groups or a class of people do not take the law into their
hands and indulge in vigilantism. Additionally, it is her submission that under
Article 256 of the Constitution of India, it is the obligation of the Central
Government to issue directions to the States so that the concept of cooperative
federalism is sustained and remains stable.
Mr. Tushar Mehta, learned Additional Solicitor General appearing for
the Union of India shall take instructions with regard to the role of the Union
of India. When we are going to pass an ad interim order, Mr. Tushar Mehta,
learned Additional Solicitor General appearing for the States of Haryana,
Gujarat, Maharashtra and Rajasthan submitted that these States will nominate a
senior police officer of the Police Department as the Nodal Officer in each
District, who shall ensure that these vigilantes do not take law unto
themselves or behave in a manner that they are the law in themselves. If any
kind of deviancy takes place, the said Nodal Officer shall take action and such
vigilantes are booked in accordance with law with quite promptitude.
An issue has been raised by Ms. Indira Jaising, learned senior counsel
with regard to patrolling on the highways so that such crimes are stopped. Mr.
Tushar Mehta, appearing for the States of Gujarat, Haryana, Maharashtra and
Rajasthan 4 shall obtain instructions in this regard and also apprise what
steps have been taken by the said four States. As far as Highway patrolling is
concerned, the Chief Secretary of each State, in consultation with the Director
General of Police shall take steps and file affidavits by the next date of
hearing.
As far as the other States are concerned, it is directed that each of
them shall nominate a senior Police Officer qua each District as Nodal Officer,
who shall see to it that these vigilantes do not take law unto themselves and
the deviants in law are booked quite promptly.
A copy of the order be sent to the Chief Secretary of all the
States."
7. On 22nd September, 2017, when the matter was listed, it was
noted that the States of Uttar Pradesh, Karnataka, Jharkhand, Gujarat and Rajasthan
had filed the compliance affidavit and an undertaking was given on behalf of
the State of Bihar to file the affidavit of compliance in the course of the
day.
8. In pursuance of our order, the State of Uttar Pradesh has filed an
affidavit annexing a communication sent by the Secretary, Department of Home
(Police) to Senior Superintendents of Police/All Superintendents of Police of
all the districts in Uttar Pradesh. We think it appropriate to refer to the
relevant paragraphs of the said communication:-
“I have been directed to say that while ensuring the compliance of the
aforesaid orders of the Hon‟ble Supreme
Court of India, an effective control must be maintained over the Criminal
Activities of the Vigilantes. Besides it the Designated Nodal Officer of each
district shall take effective and prompt measures to curve the Criminal
Activities of such Vigilantes. It must be ensured that such antisocial elements
are not permitted to involve themselves in any of such criminal activities.
3. In the monthly crime meetings, this issue must be included as one of
the issue to be closely monitored. It must be regularly reviewed. Besides it,
the Local Intelligence Unit must be deputed to identify such Vigilante and an
strict watch be maintained on their activities.
4. It is further directed that while patrolling on the National Highways
and other roads, the Local Police and dial 100 be directed to ensure that no
Vigilante takes over Law and Order in its hands and commits a Criminal Act.
Prompt enquiries be made against the unlawful activities of such antisocial
elements and necessary legal action be taken against them through the
designated Nodal Officers posed in their Districts. In case any such incidents
comes to the notice of the local Police or dial 100 during the patrolling, the
same may be brought to the Notice of the Nodal Officer immediately. Thereafter
further legal action may be ensured promptly by such designated Nodal Officers.
5. It is therefore directed that the aforesaid process is regularly
adopted, reviewed and monitored from time to time and the details if any be
forwarded to the Director General of Police U.P. Lucknow, who shall also
designate a Nodal Officer out of the Officers posted at the Police
Headquarters. This matter must be reviewed regularly in each of the monthly
meetings and the necessary details after reviewing the situation be made
available to the State Government latest by 10th of the each Month.”
9. An affidavit has been filed on behalf of the State of Gujarat annexing
orders dated 07.09.2017 and 11.09.2017 passed by the Director General cum
Inspector General of Police, Gujarat State and by the Inspector General of
Police, State Traffic Branch. The first order reads thus:-
“The volunteers of the organizations associated with cow protection or
compassion for animals as well as other citizens have no right to take law into
their own hands to resort to violence or other illegal acts, either
collectively or individually, targeted against the individuals undertaking
transportation of animals or carrying on the trade in animals/meat, under the
guise of cow protection, the protection of the cow progeny or in the name of
compassion for animals. With a view to effectively curb such illegal
activities, the Hon‟ble Supreme Court has directed vide the Order in
question to nominate a senior Police Officer qua each district as the Nodal
Officer. The Nodal Officer to be so nominated shall be required to make
effective arrangements in his jurisdiction, especially on the highways, to
obviate illegal acts and violence in the name of cow protection or compassion
for animals. If some incidents does take place even after taking all
precautions, the Nodal Officer shall have to ensure that prompt and effective
legal action is initiated against the vigilantes involved in the incident. To
achieve these objectives, the following officers are hereby nominated as the
Nodal Officers in the Police Commissionerates and Police Districts in the State
of Gujarat.
Area
|
Nodal Officer
|
Police Commissionerate
|
Concerned Commissioner of Police
|
Police District
|
Concerned Superintendent of Police
|
Jurisdiction of Western Railway, Ahmedabad/Vadodra
|
Concerned Superintendent of Police, Western Railway
|
2. With a view to ensure effective legal proceedings in all offences
that may get registered in connection with the illegal activities under
consideration, the Director General of Police, CID (Crime and Railways),
Gujarat State, Gandhinagar shall undertake quarterly review of all such cases.”
10. A communication has been sent by the Inspector General of Police,
State Traffic Branch from the office of the Director General to all the Police
Commissioners, Range Heads and Police Superintendents (including Western
Railway, Ahmedabad). The relevant part of the said communication reads thus:-
“While such incidents take place in certain specific places, specific
roads and particular areas, such spots on National Highway, State Highway and
other roads be identified and mapped. Further, as is known, there is a specific
pattern of violent incidents taking place and such workers have their camps at
particular time, particular spots and they intercept vehicles at certain
specific places. Therefore, such time slots and venues be identified within
area of your jurisdiction as also specific modus operandi being followed by the
persons involved in transportation of cows be studied further and all police
officers/personnel should be briefed about the routes, time, vehicles and
methods of packing in vehicles used by such persons and instruct them to keep
vigil watch on them.
3. After surveying the area, secret watch be deployed at the sensitive
spots (vulnerability mapping) so identified and considering the modus operandi
of transporters of Gauvansh and the practices of Cow Protectors. Further,
arrangements for intensive patrolling be made and thus prevent happening such
violent incidents.
4. Considering sensitivity and gravity of violent assaults on traders
engaged in transportation of animals/meat, it should be ensured that no
so-called workers or organizations must interfere in functioning of police in
such cases, that no private persons should take law in their hands and make
arrangements for spreading awareness among all concerned persons to prevent
occurrence of such incidents.
5. It shall be ensured that all the statutes concerning cows and animals
be followed by Police Department. Verification of legality or otherwise of
transportation of animals/meat is authority of police department only. However,
due to interference in this by individuals or organizations other than police
lead to situation of conflicts and law and order issues, occurrence of violent
incidents hence all possible efforts may be made to prevent the same and
whenever any such incident takes place, legal procedures be initiated
immediately and effective action be taken by tracing all the accused involved
within further delay.”
It is noticeable that Nodal Officers have been nominated. There are
affidavits filed by the other States indicating how compliance has been carried
out.
11. Mr. Sanjay R. Hegde, learned senior counsel appearing for the petitioner
in Writ Petition (Civil) No. 754 of 2016, while substantiating the assertions
made in the writ petition, submitted that no individual or vigilante group can
engage himself/themselves in an activity of lynching solely on the basis of a
perception that a crime has been committed. That apart, submits Mr. Hegde, the
supremacy of law has to be recognized and if a law prescribes a punishment for
a crime, it has the mechanism provided under the law to do so. The procedural
and the substantial safeguards are required to be followed. It is urged by Mr.
Hegde, with all the emphasis at his command, that lynching or any kind of mob
violence has to be curbed and crippled by the executive and no excuse can ever
be tolerated. Stress is laid on prevention, remedial and punitive measures. In
this regard, he has placed reliance on a recent judgment rendered in Shakti
Vahini v. Union of India & others, 2 2018 (5) SCALE.
12. At this juncture, we may enumerate the submissions advanced by Ms.
Indira Jaisingh, learned senior counsel for the petitioner in Writ Petition
(Civil) No. 732 of 2017. She has referred to Martin Luther King Jr. wherein he
had said that law may not be able to make a man love him, but it can keep the
man from lynching him. She submits that there has been a constant increase in
the number of incidents in recent years as a consequence of which citizens
belonging to minority communities have become victims of targeted violence
which mainly originate on suspicion and at times misinformation that the victims
were involved in illegal cattle trade and such other activities. Learned senior
counsel has also referred to certain specific incidents of lynching. It is
additionally argued by her that the Central Government be directed to intervene
in exercise of the power conferred under Articles 256 and 257 of the
Constitution to issue directions to the State Governments.
13. It is urged by her that in the recent past, self proclaimed and
self-styled vigilantes have brazenly taken law into themselves and have
targeted citizens belonging to certain communities and lower strata of the
society which cannot be tolerated and it is the obligation of the Union and the
States to take immediate action warranted in law to stop such activities. She
has further submitted that there have been many an incident of lynching mostly
by vigilante groups across the States of Maharashtra, Gujarat, Rajasthan, Uttar
Pradesh, Haryana, Karnataka, Madhya Pradesh, Jammu and Kashmir and Delhi. It is
her stringent stand that action is required to be taken against the
perpetrators when approached by the family members of the victim.
14. She has canvassed that it is the foremost duty of the Central and the
State Governments to ensure that the members of the minorities are not targeted
by mob violence and vigilante groups and if the illegal actions of these
lynchers are not totally curbed, there would be absolute chaos where any
private individual can take law into his own hands for the enforcement of
criminal law in accordance with his own judgment.
15. At the very inception, while delving into the rivalised submissions
advanced at the Bar, it is necessary to understand that a controversy of the
present nature deserves to be addressed with enormous sensitivity. We had
issued certain directions as an interim measure and there has been some
compliance but we are of the considered opinion that the situations that have
emerged and the problems that have arisen need to be totally curbed. The States
have the onerous duty to see that no individual or any core group take law into
their own hands. Every citizen has the right to intimate the police about the
infraction of law. As stated earlier, an accused booked for an offence is
entitled to fair and speedy trial under the constitutional and statutory scheme
and, thereafter, he may be convicted or acquitted as per the adjudication by
the judiciary on the basis of the evidence brought on record and the
application of legal principles. There cannot be an investigation, trial and
punishment of any nature on the streets. The process of adjudication takes
place within the hallowed precincts of the courts of justice and not on the
streets. No one has the right to become the guardian of law claiming that he
has to protect the law by any means. It is the duty of the States, as has been
stated in Nandini Sundar and others v. State of Chhattisgarh, (2011) 7 SCC 547 to
strive, incessantly and consistently, to promote fraternity amongst all
citizens so that the dignity of every citizen is protected, nourished and
promoted. That apart, it is the responsibility of the States to prevent
untoward incidents and to prevent crime.
16. In Mohd. Haroon and others v. Union of India and another,
(2014) 5 SCC 252 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. In this
context, reference to the authority in Archbishop Raphael Cheenath S.V.D.
v. State of Orissa and another, (2016) 9 SCC 682 would be useful. In the said case, while dealing with
the issue of communal violence, the Court observed that the State Government
shall do well to enquire into and find the causes for such communal unrest and
strengthen the fabric of the society. It further stated that 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.
17. There can be no shadow of doubt that the authorities which are
conferred with the responsibility to maintain law and order in the States have
the principal obligation to see that vigilantism, be it cow vigilantism or any
other vigilantism of any perception, does not take place. When any core group
with some kind of idea take the law into their own hands, it ushers in anarchy,
chaos, disorder and, eventually, there is an emergence of a violent society.
Vigilantism cannot, by any stretch of imagination, be given room to take shape,
for it is absolutely a perverse notion. We may note here that certain
applications for intervention and written notes have been filed in this regard
supporting the same on the basis that there is cattle smuggling and cruel
treatment to animals. In this context, suffice it to say that it is the law
enforcing agencies which have to survey, prevent and prosecute. No one has the
authority to enter into the said field and harbour the feeling that he is the
law and the punisher himself. A country where the rule of law prevails does not
allow any such thought. It, in fact, commands for ostracisation of such
thoughts with immediacy.
18. Lynching is an affront to the rule of law and to the exalted values of
the Constitution itself. We may say without any fear of contradiction that
lynching by unruly mobs and barbaric violence arising out of incitement and
instigation cannot be allowed to become the order of the day. Such vigilantism,
be it for whatever purpose or borne out of whatever cause, has the effect of
undermining the legal and formal institutions of the State and altering the
constitutional order. These extrajudicial attempts under the guise of
protection of the law have to be nipped in the bud; lest it would lead to rise
of anarchy and lawlessness which would plague and corrode the nation like an
epidemic. The tumultuous dark clouds of vigilantism have the effect of
shrouding the glorious ways of democracy and justice leading to tragic
breakdown of the law and transgressing all forms of civility and humanity.
Unless these incidents are controlled, the day is not far when such monstrosity
in the name of self-professed morality is likely to assume the shape of a huge
cataclysm. It is in direct violation of the quintessential spirit of the rule
of law and of the exalted faiths of tolerance and humanity.
19. Mob vigilantism and mob violence have to be prevented by the
governments by taking strict action and by the vigil society who ought to
report such incidents to the state machinery and the police instead of taking
the law into their own hands. Rising intolerance and growing polarisation expressed
through spate of incidents of mob violence cannot be permitted to become the
normal way of life or the normal state of law and order in the country. Good
governance and nation building require sustenance of law and order which is
intricately linked to the preservation of the marrows of our social structure.
In such a situation, the State has a sacrosanct duty to protect its citizens
from unruly elements and perpetrators of orchestrated lynching and vigilantism
with utmost sincerity and true commitment to address and curb such incidents
which must reflect in its actions and schemes.
20. Hate crimes as a product of intolerance, ideological dominance and
prejudice ought not to be tolerated; lest it results in a reign of terror.
Extra judicial elements and non-State actors cannot be allowed to take the
place of law or the law enforcing agency. A fabricated identity with bigoted
approach sans acceptance of plurality and diversity results in provocative
sentiments and display of reactionary retributive attitude transforming itself
into dehumanisation of human beings. Such an atmosphere is one in which
rational debate, logical discussion and sound administration of law eludes
thereby manifesting clear danger to various freedoms including freedom of speech
and expression. One man's freedom of thought, action, speech, expression,
belief, conscience and personal choices is not being tolerated by the other and
this is due to lack of objective rationalisation of acts and situations. In
this regard, it has been aptly said:-
"Freedom of speech is a principal pillar of a free government;
When this support is taken away, the constitution of a free society is
dissolved and tyranny is erected on its ruins."
Benjamin Franklin, On Freedom of Speech and the Press, from the
Pennsylvania Gazette, November, 1737
21. Freedom of speech and expression in different forms is the élan vital
of sustenance of all other rights and is the very seed for germinating the
growth of democratic views. Plurality of voices celebrates the
constitutionalist idea of a liberal democracy and ought not to be suppressed.
That is the idea and essence of our nation which cannot be, to borrow a line
from Rabindranath Tagore, “broken up into fragments by narrow domestic walls”
of caste, creed, race, class or religion. Pluralism and tolerance are essential
virtues and constitute the building blocks of a truly free and democratic
society. It must be emphatically stated that a dynamic contemporary
constitutional democracy imbibes the essential feature of accommodating
pluralism in thought and approach so as to preserve cohesiveness and unity.
Intolerance arising out of a dogmatic mindset sows the seeds of upheaval and
has a chilling effect on freedom of thought and expression. Hence, tolerance has
to be fostered and practised and not allowed to be diluted in any manner.
22. In S. Rangarajan v. P. Jagjivan Ram and others, (1989) 2 SCC 574 K.
Jagannatha Shetty, J., although in a different context, referred to the
decision of the European Court of Human Rights in Handyside v. United
Kingdom, 1976 EHRR 737, at p. 754 wherein it has been held thus in
the context of Article 10 of the European Convention on Human Rights (ECHR):-
"The court‟s supervisory functions oblige it to pay the utmost
attention to the principles characterizing a „democratic society‟. Freedom of expression constitutes one of the
essential foundations of such a society, one of the basic conditions for its
progress and for the development of every man. Subject to Article 10(2), it is
applicable not only to „information‟
or „ideas‟ that are favourably received or regarded as
inoffensive or as a matter of indifference, but also to those that offend,
shock or disturb the State or any sector of the population. Such are the
demands of that pluralism, tolerance and broadmindedness without which there is
no „democratic society‟."
23. In a rights based approach to constitutional legitimacy, the right to
life and liberty is considered paramount and, therefore, democratic governments
must propel and drive towards stronger foothold for liberties so as to ensure
sustenance of higher values of democracy thereby paving the path for a
spontaneous constitutional order. Crime knows no religion and neither the
perpetrator nor the victim can be viewed through the lens of race, caste, class
or religion. The State has a positive obligation to protect the fundamental
rights and freedoms of all individuals irrespective of race, caste, class or
religion. The State has the primary responsibility to foster a secular,
pluralistic and multi-culturalistic social order so as to allow free play of
ideas and beliefs and co-existence of mutually contradictory perspectives.
Stifling free voices can never bode well for a true democracy. It is essential
to build societies which embrace diversity in all spheres and rebuild trust of
the citizenry in the State machinery.
24. Lynching and mob violence are creeping threats that may gradually take
the shape of a Typhon-like monster as evidenced in the wake of the rising wave
of incidents of recurring patterns by frenzied mobs across the country
instigated by intolerance and misinformed by circulation of fake news and false
stories. There has been an unfortunate litany of spiralling mob violence and
agonized horror presenting a grim and gruesome picture that compels us to
reflect whether the populace of a great Republic like ours has lost the values
of tolerance to sustain a diverse culture. Besides, bystander apathy, numbness
of the mute spectators of the scene of the crime, inertia of the law enforcing
machinery to prevent such crimes and nip them in the bud and grandstanding of
the incident by the perpetrators of the crimes including in the social media
aggravates the entire problem. One must constantly remind oneself that an
attitude of morbid intolerance is absolutely intolerable and agonizingly
painful.
25. Lynching, at one point of time, was so rampant in the United States
that Mark Twain had observed in his inimitable style that it had become
"the United States of Lyncherdom". The sarcasm is apparent.
26. In the obtaining situation, the need to preserve and maintain unity
amongst the fellow citizens of our country, who represent different castes,
creed and races, follow different religions and use multiple languages, ought
to be discussed and accentuated. It is requisite to state that our country must
sustain, exalt and celebrate the feeling of solidarity and harmony so that the
spirit of oneness is entrenched in the collective character. Sans such harmony
and understanding, we may unwittingly pave the path of disaster.
27. In St. Stephen's College v. University of Delhi, (1992) 1 SCC 558 while
emphasizing 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.
28. „Unity‟ in the context of a nation means unity amongst the
fellow citizens. It implies integration of the citizens whereby the citizens
embrace a feeling of „We‟ with a sense of bonding with fellow citizens which
would definitely go a long way in holding the Indian society together. Emile
Durkheim, French sociologist, has said that when unity is based on
heterogeneity and diversity, it can very well be described as organic
solidarity. Durkheim‟s view would be acceptable in the context of the
Indian society as it exhibits a completely organic social solidarity.
29. The Court in Sri Adi Visheshwara of Kashi Vishwanath Temple,
Varanasi and others v. State of U.P. and others, (1997) 4 SCC 606. has highlighted that religious tolerance is an
important facet of „Unity in Diversity‟
and observed thus:- “Unity in diversity is the Indian culture and ethos. The
tolerance of all religious faiths, respect for each other's religion are our
ethos. These pave the way and foundation for integration and national unity and
foster respect for each others religion; religious faith and belief.
Integration of Bharat is, thus, its arch.” [Emphasis supplied]
30. In State of Karnataka and another v. Dr. Praveen Bhai Thogadia,
(2004) 4 SCC 684 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. The following
observations made by the Court in the aforesaid case with regard to the need to
preserve the unified social fabric are also important:-
“It is, therefore, imperative that if any individual or group of
persons, by their action or caustic and inflammatory speech are bent upon
sowing seed of mutual hatred, and their proposed activities are likely to
create disharmony and disturb equilibrium, sacrificing public peace and
tranquility, strong action, and more so preventive actions are essentially and
vitally needed to be taken. Any speech or action which would result in
ostracization of communal harmony would destroy all those high values which the
Constitution aims at. Welfare of the people is the ultimate goal of all laws,
and State action and above all the Constitution. They have one common object,
that is to promote well being and larger interest of the society as a whole and
not of any individual or particular groups carrying any brand names. It is
inconceivable that there can be social well being without communal harmony,
love for each other and hatred for none.” [Emphasis added]
31. Unity in Diversity must be recognized as the most potent weapon in
India‟s armoury which binds different and varied kinds of
people in the solemn thread of humanity. This diversity is the strength of our
nation and for realizing this strength, it is sine qua non that we
sustain it and shun schismatic tendencies. It has to be remembered that the
unique feature of „Unity in Diversity‟
inculcates in the citizens the virtue of respecting the opinions and choices of
others. Such respect imbibes the feeling of acceptance of plurality and
elevates the idea of tolerance by promoting social cohesion and infusing a
sense of fraternity and comity.
32. In this context, the observations in State of Uttar Pradesh v.
Lalai Singh Yadav, (1976) 4 SCC 213 are apt:-
“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 offence publications as to provoke or outrage groups into possible
violent action. Essentially, good government necessitates peace and security..”
Thus, for our nation to survive, without being whittled down, it is a
necessary precondition that all must embrace the sentiment that they are the
essential constituents of diversity that galvanizes for preservation of unity
and respects pluralistic perceptions in cohesion with the constitutional ethos.
33. Having stated about the need of tolerance in a pluralistic society, we
may refer with profit that the Court in D.K. Basu v. State of West Bengal,
(1997) 1 SCC 416 after referring to the authorities in Joginder
Kumar v. State of U.P. and others, (1994)
4 SCC 260; Nilabati Behera v. State
of Orissa and others, (1993) 2 SCC 746 and State of M.P. v. Shyamsunder Trivedi and
others, (1995) 4 SCC 262 laid down certain guidelines to be followed in cases
of arrest and detention. In Arnesh Kumar v. State of Bihar and another,
(2014) 8 SCC 273 this Court referred to Section 41-A of the Code of
Criminal Procedure and ruled thus:-
“7.3. In pith and core, the police officer before arrest must
put a question to himself, why arrest? Is it really required? What purpose it
will serve? What object it will achieve? It is only after these questions are
addressed and one or the other conditions as enumerated above is satisfied, the
power of arrest needs to be exercised. In fine, before arrest first the police
officers should have reason to believe on the basis of information and material
that the accused has committed the offence. Apart from this, the police officer
has to be satisfied further that the arrest is necessary for one or the more purposes
envisaged by sub-clauses (a) to (e) of clause (1) of Section 41
CrPC.”
34. The purpose of referring to the said authorities is that the law
provides a procedure for arrest and equally for investigation and the
consequential trial. That is what has been interpreted by this Court while
dealing with Article 21 of the Constitution. Thus, the rights of the citizens
cannot be destroyed in an unlawful manner. As the investigating agency has to
show fidelity to the statutory safeguards, similarly, every citizen is required
to express loyalty to law and the legal procedure. No one, and we repeat no
one, is entitled to take the law into his own hands and annihilate anything
that the majesty of law protects. When the vigilantes involve themselves in
lynching or any kind of brutality, they, in fact, put the requisite
accountability of a citizen to law on the ventilator. That cannot be
countenanced. Such core groups cannot be allowed to act as they please. They
cannot be permitted to indulge in freezing the peace of life on the basis of
their contrived notions. They are no one to punish a person by ascribing any
justification. The stand and stance put forth in the interlocutory applications
filed by the impleaded parties intend to convey certain contraventions of the
provisions of statutory law but the prescription of punishment does not empower
any one to authorize himself to behave as the protector of law and impose
punishment as per his choice and fancy. That is the role and duty of the law
enforcing agencies known to law. No one else can be permitted to expropriate
that role. It has to be clearly understood that self-styled vigilantes have no
role in that sphere. Their only right is to inform the crime, if any, to the
law enforcing agency. It is the duty of the law enforcement agencies and the
prosecutors to bring the accused persons before the law adjudicating
authorities who, with their innate training and sense of justice, peruse the
materials brought on record, follow the provisions of law and pass the
judgment. In the scheme of things, the external forces cannot assume the role
of protectors and once they pave the said path, they associate themselves with
criminality and bring themselves in the category of criminals. It is imperative
for them to remember that they are subservient to the law and cannot be guided
by notions or emotions or sentiments or, for that matter, faith.
35. In this context, we may reproduce a passage from Shakti Vahini (supra)
which, though pronounced in a different context, has certain significance:-
“The 'Khap Panchayats' or such assembly should not take the law into
their hands and further cannot assume the character of the law implementing
agency, for that authority has not been conferred upon them under any law. Law
has to be allowed to sustain by the law enforcement agencies. For example, when
a crime under Indian Penal Code is committed, an assembly of people cannot
impose the punishment. They have no authority. They are entitled to lodge an
FIR or inform the police. They may also facilitate so that the Accused is dealt
with in accordance with law. But, by putting forth a stand that they are
spreading awareness, they really can neither affect others' fundamental rights
nor cover up their own illegal acts. It is simply not permissible. In fact, it
has to be condemned as an act abhorrent to law and, therefore, it has to stop.
Their activities are to be stopped in entirety. There is no other alternative.
What is illegal cannot commend recognition or acceptance.” 36. We may now refer
to some of the authorities of the American Courts which have dealt with the
menace of lynching which, at one point of time, was very rampant in the
American society. The American Courts deplored this menace and dealt it with
iron hands so as to eradicate the same. Ex parte Riggins, (C.C.N.D. Ala.,
1904) 134 Fed. 404 was a
case involving the lynching of a Negro citizen who had been imprisoned on the
charge of murder. While he was imprisoned in jail, the mob removed him and
lynched him by hanging. Thereafter, certain mobsters involved in the said
hanging were indicted. A petition of habeas corpus was filed seeking the
release of the said mobsters on the ground that there was no law in the United
States which legalized the indictment of the said mobsters. While disposing of
the said habeas corpus petition and upholding the indictment, Thomas Goode
Jones, J. made the following relevant observations:-
"When a private individual takes a person charged with crime from
the custody of the state authorities to prevent the state from affording him
due process of law, and puts him to death to punish the crime and to prevent
the enjoyment of such right, it is violent usurpation and exercise, in the
particular case, of the very function which the Constitution of the United
States itself, under this clause [the 14th Amendment] directs the state to
perform in the interest of the citizen. Such lawlessness differs from ordinary
kidnapping and murder, in that dominant intent and actual result is usurpation
and exercise by private individuals of the sovereign functions of administering
justice and punishing crime, in order to defeat the performance of duties
required of the state by the supreme law of the land. The inevitable effect of
such lawlessness is not merely to prevent the state from performing its duty,
but to deprive the accused of all enjoyment, or opportunity of enjoyment of
rights which this clause of the Constitution intended to work out for him by
the actual performance by the state of all things included in affording due
process of law, which enjoyment can be worked out in no other way in his
individual case. Such lawlessness defeats the performance of the state's duty,
and the opportunity of the citizen to have the benefit of it, quite as
effectually and far more frequently than vicious laws, or the partiality or the
inefficiency of state officers in the discharge of their constitutional duty.
It is a great, notorious, and growing evil, which directly attacks the purpose
which the Constitution of the United States had in view when it enjoined the
duty upon the state."
37. In Wilson v. Garcia, 471 U.S. 261 (1985) the
Supreme Court of the United States referred to the debates of the Parliament
while enacting the Civil Rights Act of 1871 which are relevant in the present
context and read as follows:-
"While murder is stalking abroad in disguise, while whippings and
lynchings and banishing have been visited upon unoffending American citizens,
the local administrations have been found 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 unwhipped
of justice. Immunity is given to crime, and the records of public tribunals are
searched in vain for any evidence of effective redress.3"
38. Thus, 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. It is
nauseatingly perverse. In the aforesaid hearing, Mr. Hegde, as stated earlier,
gave the preventive, remedial and punitive measures to be laid down as
guidelines by this Court. Ms. Indira Jaising, learned senior counsel, has
placed reliance on Pravasi Bhalai Sangathan v. Union of India and others, (2014) 11 SCC
477 to
submit that these guidelines do come under Sections 153 and 295A IPC and this
Court has elaborately dealt with the same.
39. There is no dispute that the act of lynching is unlawful but we are not
concerned with any specific case since it has become a sweeping phenomenon with
a far-reaching impact. It is our constitutional duty to take a call to protect
lives and human rights. There cannot be a right higher than the right to live
with dignity and further to be treated with humanness that the law provides.
What the law provides may be taken away by lawful means; that is the
fundamental concept of law. No one is entitled to shake the said foundation. No
citizen can assault the human dignity of another, for such an action would
comatose the majesty of law. In a civilized society, it is the fear of law that
prevents crimes. Commencing from the legal space of democratic Athens till the
legal system of modern societies today, the law makers try to prevent crimes
and make the people aware of the same but some persons who develop masterly
skill to transgress the law jostle in the streets that eventually leads to an
atmosphere which witnesses bloodshed and tears. When the preventive measures
face failure, the crime takes place and then there have to be remedial and
punitive measures. Steps to be taken at every stage for implementation of law
are extremely important. Hence, the guidelines are necessary to be prescribed.
40. In view of the aforesaid, we proceed to issue the following
guidelines:-
A. Preventive Measures
(i) The State Governments shall designate, a senior police officer, not
below the rank of Superintendent of Police, as Nodal Officer in each district.
Such Nodal Officer shall be assisted by one of the DSP rank officers in the
district for taking measures to prevent incidents of mob violence and lynching.
They shall constitute a special task force so as to procure intelligence
reports about the people who are likely to commit such crimes or who are
involved in spreading hate speeches, provocative statements and fake news.
(ii) The State Governments shall forthwith identify Districts,
Sub-Divisions and/or Villages where instances of lynching and mob violence have
been reported in the recent past, say, in the last five years. The process of
identification should be done within a period of three weeks from the date of
this judgment, as such time period is sufficient to get the task done in
today's fast world of data collection.
(iii) The Secretary, Home Department of the concerned States shall
issue directives/advisories to the Nodal Officers of the concerned districts
for ensuring that the Officer In-charge of the Police Stations of the
identified areas are extra cautious if any instance of mob violence within
their jurisdiction comes to their notice.
(iv) The Nodal Officer, so designated, shall hold regular meetings (at
least once a month) with the local intelligence units in the district along
with all Station House Officers of the district so as to identify the existence
of the tendencies of vigilantism, mob violence or lynching in the district and
take steps to prohibit instances of dissemination of offensive material through
different social media platforms or any other means for inciting such
tendencies. The Nodal Officer shall also make efforts to eradicate hostile
environment against any community or caste which is targeted in such incidents.
(v) The Director General of Police/the Secretary, Home Department of
the concerned States shall take regular review meetings (at least once a
quarter) with all the Nodal Officers and State Police Intelligence heads. The
Nodal Officers shall bring to the notice of the DGP any inter-district
co-ordination issues for devising a strategy to tackle lynching and mob
violence related issues at the State level.
(vi) It shall be the duty of every police officer to cause a mob to
disperse, by exercising his power under Section 129 of CrPC, which, in his
opinion, has a tendency to cause violence or wreak the havoc of lynching in the
disguise of vigilantism or otherwise.
(vii) The Home Department of the Government of India must take
initiative and work in co-ordination with the State Governments for sensitising
the law enforcement agencies and by involving all the stake holders to identify
the measures for prevention of mob violence and lynching against any caste or
community and to implement the constitutional goal of social justice and the
Rule of Law.
(viii) The Director General of Police shall issue a circular to the
Superintendents of Police with regard to police patrolling in the sensitive
areas keeping in view the incidents of the past and the intelligence obtained
by the office of the Director General. It singularly means that there should be
seriousness in patrolling so that the anti-social elements involved in such
crimes are discouraged and remain within the boundaries of law thus fearing to
even think of taking the law into their own hands.
(ix) The Central and the State Governments should broadcast on radio
and television and other media platforms including the official websites of the
Home Department and Police of the States that lynching and mob violence of any
kind shall invite serious consequence under the law.
(x) It shall be the duty of the Central Government as well as the State
Governments to take steps to curb and stop dissemination of irresponsible and
explosive messages, videos and other material on various social media platforms
which have a tendency to incite mob violence and lynching of any kind.
(xi) The police shall cause to register FIR under Section 153A of IPC
and/or other relevant provisions of law against persons who disseminate
irresponsible and explosive messages and videos having content which is likely
to incite mob violence and lynching of any kind.
(xii) The Central Government shall also issue appropriate
directions/advisories to the State Governments which would reflect the gravity
and seriousness of the situation and the measures to be taken.
B. Remedial Measures
(i) Despite the preventive measures taken by the State Police, if it
comes to the notice of the local police that an incident of lynching or mob
violence has taken place, the jurisdictional police station shall immediately
cause to lodge an FIR, without any undue delay, under the relevant provisions
of IPC and/or other provisions of law.
(ii) It shall be the duty of the Station House Officer, in whose police
station such FIR is registered, to forthwith intimate the Nodal Officer in the
district who shall, in turn, ensure that there is no further harassment of the
family members of the victim(s).
(iii) Investigation in such offences shall be personally monitored by
the Nodal Officer who shall be duty bound to ensure that the investigation is
carried out effectively and the charge-sheet in such cases is filed within the
statutory period from the date of registration of the FIR or arrest of the
accused, as the case may be.
(iv) The State Governments shall prepare a lynching/mob violence victim
compensation scheme in the light of the provisions of Section 357A of CrPC
within one month from the date of this judgment. In the said scheme for
computation of compensation, the State Governments shall give due regard to the
nature of bodily injury, psychological injury and loss of earnings including loss
of opportunities of employment and education and expenses incurred on account
of legal and medical expenses. The said compensation scheme must also have a provision
for interim relief to be paid to the victim(s) or to the next of kin of the
deceased within a period of thirty days of the incident of mob
violence/lynching.
(v) The cases of lynching and mob violence shall be specifically tried
by designated court/Fast Track Courts earmarked for that purpose in each
district. Such courts shall hold trial of the case on a day to day basis. The
trial shall preferably be concluded within six months from the date of taking
cognizance. We may hasten to add that this direction shall apply to even
pending cases. The District Judge shall assign those cases as far as possible
to one jurisdictional court so as to ensure expeditious disposal thereof. It
shall be the duty of the State Governments and the Nodal Officers in particular
to see that the prosecuting agency strictly carries out its role in appropriate
furtherance of the trial.
(vi) To set a stern example in cases of mob violence and lynching, upon
conviction of the accused person(s), the trial court must ordinarily award
maximum sentence as provided for various offences under the provisions of the
IPC.
(vii) The courts trying the cases of mob violence and lynching may, on
application by a witness or by the public prosecutor in relation to such
witness or on its own motion, take such measures, as it deems fit, for protection
and for concealing the identity and address of the witness.
(viii) The victim(s) or the next of kin of the deceased in cases of mob
violence and lynching shall be given timely notice of any court proceedings and
he/she shall be entitled to be heard at the trial in respect of applications
such as bail, discharge, release and parole filed by the accused persons. They
shall also have the right to file written submissions on conviction, acquittal
or sentencing.
(ix) The victim(s) or the next of kin of the deceased in cases of mob
violence and lynching shall receive free legal aid if he or she so chooses and
engage any advocate of his/her choice from amongst those enrolled in the legal
aid panel under the Legal Services Authorities Act, 1987.
C. Punitive Measures
(i) Wherever it is found that a police officer or an officer of the
district administration has failed to comply with the aforesaid directions in
order to prevent and/or investigate and/or facilitate expeditious trial of any
crime of mob violence and lynching, the same shall be considered as an act of
deliberate negligence and/or misconduct for which appropriate action must be
taken against him/her and not limited to departmental action under the service
rules. The departmental action shall be taken to its logical conclusion
preferably within six months by the authority of the first instance.
(ii) In terms of the ruling of this Court in Arumugam Servai v.
State of Tamil Nadu, (2011) 6 SCC
405 the States are directed to take
disciplinary action against the concerned officials if it is found that (i)
such official(s) did not prevent the incident, despite having prior knowledge
of it, or (ii) where the incident has already occurred, such official(s) did
not promptly apprehend and institute criminal proceedings against the culprits.
41. The measures that are directed to be taken have to be carried out within
four weeks by the Central and the State Governments. Reports of compliance be
filed within the said period before the Registry of this Court.
42. We may emphatically note that it is axiomatic that it is the duty of
the State to ensure that the machinery of law and order functions efficiently
and effectively in maintaining peace so as to preserve our quintessentially
secular ethos and pluralistic social fabric in a democratic set-up governed by
rule of law. In times of chaos and anarchy, the State has to act positively and
responsibly to safeguard and secure the constitutional promises to its
citizens. The horrendous acts of mobocracy cannot be permitted to inundate the
law of the land. Earnest action and concrete steps have to be taken to protect
the citizens from the recurrent pattern of violence which cannot be allowed to
become “the new normal”. The State cannot turn a deaf ear to the growing
rumblings of its People, since its concern, to quote Woodrow Wilson, “must ring
with the voices of the people.” The exigencies of the situation require us to
sound a clarion call for earnest action to strengthen our inclusive and
all-embracing social order which would, in turn, reaffirm the constitutional
faith. We expect nothing more and nothing less.
43. Apart from the directions we have given hereinbefore and what we have
expressed, we think it appropriate to recommend to the legislature, that is,
the Parliament, to create a separate offence for lynching and provide adequate
punishment for the same. We have said so as a special law in this field would
instill a sense of fear for law amongst the people who involve themselves in
such kinds of activities. There can be no trace of doubt that fear of law and
veneration for the command of law constitute the foundation of a civilized
society.
44. Let the matters be listed on 20th August, 2018 for further directions.