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TMI Blog2018 (7) TMI 1993X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Necessary guidelines is prescribed - Let the matters be listed on 20th August, 2018 for further directions. - Writ Petition (Civil) Nos. 754, 764, 768 of 2016, 732 of 2017 and Writ Petition (Criminal) No. 122 of 2017 - - - Dated:- 17-7-2018 - Dipak Misra, C.J.I., A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ. For the Appellant : P.S. Narasimha, A.N.S. Nadkarni, ASGs, Sanjay R. Hegde, Indira Jaisingh, Colin Gonsalves, V. Mohana, Siddarth Luthra, Sonia Mathur, Sr. Advs., Anas Tanwir, Fuzail Ahmad Ayyubi, Pranjal Kishore, Abdul Qadir, Shadan Farasat, Warisha Farasat, Rudrakshi Deo, S.R. Bhat, Tariq Adeeb, Mangala, Satya Mitra, Binu Tamta, Rukhmini Bobde, Raj Bahadur Yadav, B.V. Balaram Das, V.N. Raghupathy, Parikshit P. Angadi, Anubhav T. Mishra, Archana Pathak Dave, Santosh Kumar, Pankaj Singhal, Himanshu Gupta, Nishant R. Katneshwarkar, Rohit K. Singh, Tapesh Kumar Singh, Mohd. Waquas, Aditya Pratap Singh, B. Krishna Prasad, Hemantika Wahi, Puja S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 ensu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred 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 Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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.1 21. Freedom of speech and expression in different forms is the elan 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 dom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c 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 aggra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 30. In State of Karnataka and Anr. 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 person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brace 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 Ors. (1994) 4 SCC 260, Nilabati Behera v. State of Orissa and Ors. (1993) 2 SCC 746 and State of M.P. v. Shyamsunder Trivedi and Ors. (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 Anr. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otectors 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 19471 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 publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignate, 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 v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther 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 Indian Penal Code 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt must ordinarily award maximum sentence as provided for various offences under the provisions of the Indian Penal Code. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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