Case Brief: Tehseen S. Poonawalla V Union Of India And Others

Citation: (2018) 9 SCC 501

Court: Supreme Court of India

Judges: Dipak Misra, D.Y. Chandrachud, Ajay Manikrao Khanwilkar

Theme: Cow Vigilantism and Lynching.

Subject: Constitutional law

Judgement: India

FACTS OF TEHSEEN S. POONAWALLA V UNION OF INDIA AND OTHERS

• After a spate of incidents of lynching in Dadri, Jharkhand and more by cow protection groups, distressed activists filed writ petitions in the Apex Court.
• Tehseen Poonawalla, a social activist, filed a writ petition under Art. 32 of the Constitution against the Respondent States.
• Tushar Gandhi filed the second PIL to initiate State responsibility for such mob incidents.
• The petitions were heard together by a three judge bench.

ISSUES IN TEHSEEN S. POONAWALLA V UNION OF INDIA AND OTHERS

1. Whether the States and Centre should come up with effective and immediate action plans to be undertaken against these violent cow protection mobs?

2. Whether the States and Centre should issue a further direction to remove the violent social media content uploaded by these groups?

3. 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?

IMPORTANT ARGUMENTS

Petitioners:

Mr. Hegde in the 2016 petition argued that no individual can engage themselves in such action on the mere perception of a crime and that legal procedure should be followed. Stress was laid on remedial, punitive and preventive measures.

Ms. Indira Jaising argues that law enforcement agencies of States have a duty to register the FIR and prevent such incidents, argued for patrolling on highways and stated that under Art. 256 and 257 of the Constitution it is the Central Government’s responsibility to issue directions to the States to keep cooperative federalism intact.

She further submitted that it is the duty of both the State and the Centre to ensure that minorities are not targeted due to misinformation and hatred and stringent actions are taken especially when approached by family members.

Respondents:

Mr. Ranjit Kumar, Solicitor General, submitted that the Union of India does not support vigilantes and these incidents were a State matter.

The State of Gujarat and Jharkhand submitted that appropriate legal action had already been undertaken against the persons involved in these incidents.

JUDGEMENT: TEHSEEN S. POONAWALLA V UNION OF INDIA AND OTHERS

CJI Dipak Misra delivered the judgement enforcing that private citizens cannot take justice into their own hands. The judgement observed that every individual should “remain obeisant to the command of law”. The Court issued interim orders for appointment of Nodal officers and Highway patrolling. State Governments should enquire into the causes of communal unrest should foster the spirit of tolerance in order to uphold the spirit of diversity and unity. Lynching is in direct violation of the Constitution and the rule of law. The rights of citizens cannot be interfered with unlawfully under Art 21. The Court did not deal with the third issue of whether certain acts were unconstitutional.

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.

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 and 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.

PRESENT STATUS

Still applicable. The Court continues to monitor the implementation of the guidelines as it ordered compliance reports to be submitted by all the States. In the first hearing after the judgement, the court reprimanded the states who had not submitted the compliance report and gave them a deadline and strict consequences to be faced.

CONCLUSION

A lynching took place in Alwar just days after the judgement, the Supreme Court initiated contempt proceedings for negligence immediately. However, Akhlaq’s case is still stuck in court. Rajasthan and Manipur have passed Anti-Lynching Bills, but they have not yet received the President’s consent. Though the Court laid down stringent directives to curb the problem, there are still issues with its implementation.

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References:

• Tehseen S. Poonawalla v. Union of India and Others (2018) 9 SCC 501
• “Anti-Lynching Bills Passed by Rajasthan & Manipur Still Waiting for Presidential Assent.” National Herald, www.nationalheraldindia.com/politics/anti-lynching-bills-passed-by-rajasthan-and-manipur-still-waiting-for-presidential-assent.
• Vatsa, Aditi, et al. “Three Years after Akhlaq Was Lynched in Dadri, Case Is Stuck in ‘Fast-Track’ Court.” ThePrint, 25 Sept. 2018, theprint.in/india/governance/three-years-after-akhlaq-was-lynched-in-dadri-case-is-stuck-in-fast-track-court/123930/.

Contributed by: Nimisha Noronha (Jindal Global Law School)

The views of the author are personal only. (if any)