We hold that the University was not entitled and competent to devise its own fee structure in the present matter without having the fee fixed by the Committee on Fixation of Fee as contemplated under 1992 Act.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6654 OF 2018
(Arising out of Special Leave Petition (Civil) No.30567 of 2016)
M. Aamira Fathima and Others ………Appellants
VERSUS
Annamalai University and Others ..…. Respondents
WITH
CIVIL APPEAL NOS. 6655-56 OF 2018
(Arising out of Special Leave Petition (Civil) No.30658-30659 of 2016)
WITH
CIVIL APPEAL NO.6657-59 OF 2018
(Arising out of Special Leave Petition (Civil) No.31078-31080 of 2016)
WITH
CIVIL APPEAL NO.6660 OF 2018
(Arising out of Special Leave Petition (Civil) No.9806 of 2017)
WITH
CIVIL APPEAL NO.6661 OF 2018
(Arising out of Special Leave Petition (Civil) No.28543 of 2017)
2
JUDGMENT
Uday Umesh Lalit, J.
Special leave to appeal granted in all matters.
These appeals are directed against the common judgment and order
dated 26.09.2016 passed by the High Court of Judicature at Madras in Writ
Appeal No.1637 of 2014 and other connected matters. Matter arising from
Writ Appeal No.1637 of 2014 which in turn arose from Writ Petition
No.20720 of 2014, namely M. Aamira Fathima and others v. Annamalai
University and others is taken to be the lead matter and the facts leading to
the filing of the said writ appeal are set out in detail hereunder.
2. Annamalai University (hereinafter referred to as “the University”) was
constituted under the Annamalai University Act, 1928 (Madras Act No.1 of
1929)1
. This Act received the assents of Governor and Governor General on
03.11.1928 and 11.12.1928 respectively and was first published in the Fort
of St. George Gazette dated 01.01.1929. The University established
Respondent No.2 College, namely, Rajah Muthiah Medical College in the
year 1985.
1Words “Tamil Nadu” were substituted for the word “Madras” by Tamil Nadu Adaptation
of Law and Order, 1969
3
3. In 1992 the State legislature enacted the Tamil Nadu Educational
Institutions (Prohibition of Collection of Capitation Fee) Act, 1992
(hereinafter referred to as “1992 Act”). Section 2(b) defined Educational
Institution as under:-
“(b) “educational institution” means any institution by
whatever name called, whether managed by any person, private
body, local authority, trust or University, carrying on the
activity of imparting education leading to a degree or diploma
(including a degree or diploma in law, medicine or engineering)
conferred by any University established under any law made by
the Legislature of the State of Tamil Nadu and any other
educational institution or class or classes of educational
institutions (other than any educational institution established
by the Central Government or under any law made by
Parliament) as the Government may, by notification, specify;”
Section 4 dealt with regulation of tuition fee or other fees or deposits
and was initially as under:-
“4. (1) Notwithstanding anything contained in any other law for
the time being in force, the Government may, by notification,
regulate the tuition fee or any other fee or deposit that may be
received or collected by any educational institution or class or
classes of such educational institutions in respect of any or all
class or classes of students :
Provided that before issuing a notification under this subsection,
the draft of which shall be published in the Tamil Nadu
Government Gazette stating that any objection or suggestion
which may be received by the Government, within such period
as may be specified therein, shall be considered by them.
4
(2) No educational institution shall receive or collect any fee or
accept deposit in excess of the amount notified under subsection
(1).
(3) Every educational institution shall issue an official receipt
for the fee or deposit received or collected by it.”
4. After the judgment of this Court in Islamic Academy of Education
and another v. State of Karnataka and others2
, sub-section (2-A) was
added along with an Explanation in Section 4 of 1992 Act by the State
Legislature vide Tamil Nadu Educational Institutions (Prohibition of
Collection of Capitation Fee) Amendment Act, 2007. As a result of the
aforesaid insertion of sub-section (2-A) and Explanation, Section 4 of 1992
Act now reads as under:
“4. (1) Notwithstanding anything contained in any other law for
the time being in force, the Government may, by notification,
regulate the tuition fee or any other fee or deposit that may be
received or collected by any educational institution or class or
classes of such educational institutions in respect of any or all
class or classes of students :
Provided that before issuing a notification under this subsection,
the draft of which shall be published in the Tamil Nadu
Government Gazette stating that any objection or suggestion
which may be received by the Government, within such period
as may be specified therein, shall be considered by them.
(2) No educational institution shall receive or collect any fee or
accept deposit in excess of the amount notified under subsection
(1).
2
(2003) 6 SCC 697
5
(2-A) Notwithstanding anything contained in sub-section (1) or
sub-section (2), no educational institution imparting education
leading to a degree in medicine or engineering shall receive or
collect any fee in excess of the amount fixed by the ‘Committee
on fixation of fee’ constituted by the Government.
Explanation – For the purpose of this sub-section ‘Committee
on fixation of fee’ means the Committee constituted in
pursuance of the direction of the Supreme Court in Islamic
Academy of Education and another v. State of Karnataka and
others [(2002) 6 SCC 697].
(3) Every educational institution shall issue an official receipt
for the fee or deposit received or collected by it.”
5. The University, though originally established as a private University
had always received contributions and funding from the State Government.
But the University never adhered to the statutory provisions or the norms set
by the State Government or the University Grants Commission resulting in
financial losses during the years 2009-10 and 2010-11. Under the orders
passed by the Government of Tamil Nadu a Special Local Fund Audit Team
was appointed which found various irregularities, whereafter by another
order dated 14.12.2012 a High Level Committee was constituted to analyze
the audit report submitted by the Special Local Fund Audit Team. The
events which took place thereafter were summed up by the Single Judge in
the instant matters and the relevant observations in paragraphs 17 to 19 are
quoted hereunder:
6
“17. After examining the report and the supporting material,
this High Level Committee concluded that the Founder had
grossly abused the privileges conferred upon him and that
despite receiving grants from the State Government to the tune
of Rs.427.98 crores during the period from 1998-99 to 2012-13,
the University had landed up in serious financial crisis.
Therefore, the Committee recommended that the Government
shall issue necessary directions to the Senate and the Syndicate
and also to appoint some person to carry out those directions.
18. In pursuance of the aforesaid recommendations, the
Government issued a letter dated 7.3.2013 to the Vice
Chancellor, to convene the meeting of the Syndicate and
Senate, to respond to the report of the Special Local Fund Audit
Team. A special meeting of the Senate was held on 13.3.2013
and the meeting of the Syndicate was held on 14.3.2013. The
report of the Syndicate showed that by and large, the findings of
the Special Local Fund Audit Team were correct. Therefore,
the Government issued a directive on 26.3.2013 to convene a
special meeting of the Senate and the Syndicate. This was
opposed by the Vice-Chancellor by a reply dated 1.4.2013 on
the ground that a second meeting will serve no purpose.
19. Therefore, the Government, by G.O. Rt. No.1401, Public
Department dated 4.4.2013, appointed an Administrator in
exercise of the powers conferred by Section 28(4) of the
Annamalai University Act, 1928. ……. ”
6. In 2013, the State Legislature enacted the Annamalai University Act,
2013 (hereinafter referred to as “2013 Act”) which came into force w.e.f.
25.09.2013 and repealed the Annamalai University Act, 1928. Sections 3(1),
4(13) and 20(1)(m) and (ab) of said 2013 Act were as under:
“3(1) On and from the date of commencement of this Act, the
Annamalai University established under the Annamalai University
Act, 1928 shall be deemed to have been established and incorporated
7
under this Act and is hereby declared to be the University by the
aforesaid name.
4. The University shall have the following objects and powers,
namely:-
(1) to (12)…………………
(13) to fix fees and to demand and receive such fees as may be
prescribed;
“20. (1) The Syndicate shall have the following powers, namely:-
(a) to (l)……………….
 (m) to prescribe the fees to be charged for admission to the
examinations, degrees, titles and diplomas of the University and
for all or any of the purposes specified in section 4:
(n) to (z)(aa)…………….
(ab) to charge and collect such fees as may be prescribed;
(ac) to (an)……………”
7. 150 students who had taken admission in First MBBS Course in
Respondent No.2 College for the Academic Session 2013-14 preferred Writ
Petition No.20720 of 2014 in the High Court of Judicature at Madras
questioning fees of more than Rs.5.54 lakhs per annum imposed by the
University. Similar challenge was raised by students studying in Dental
Courses which petitions were heard and dealt with by the High Court along
with the main matter. It was urged by the petitioners that the fees fixed in
8
Government Colleges in the State were Rs.12,290/- for MBBS Course and
Rs.10,290/- for BDS Course; that the Committee on Fixation of Fee
constituted in terms of 1992 Act had fixed the tuition fees for MBBS Course
at Rs.2.30 lakhs for two self-financing colleges, Rs.2.60 lakhs for one selffinancing
college and Rs.2.80 for other self-financing colleges and that in so
far as ESI Medical Colleges were concerned, it had fixed the tuition fees at
Rs.24,000/-. Highlighting the enormous difference between the fees charged
by the University on one hand and the scale fixed by the Government as well
as the Committee on Fixation of Fee on the other, it was prayed that the
matter for fixation of fee be referred to the Committee in terms of 1992 Act.
8. While opposing the aforesaid submissions, it was contended on behalf
of the University that the fees stipulated by the University were in terms of
its statutes and the provisions of 2013 Act: that the object of 1992 Act was to
curtail the menace of self-financing colleges imposing high fees and that the
Government Colleges and State Universities did not come within the
purview of 1992 Act: that presently the University was running in deficit and
if the fee structure was reduced it would put the financial condition of the
University in great jeopardy.
9
9. The Single Judge of the High Court by his common Judgment and
Order dated 02.12.2014 dismissed the challenge raised by the petitioners. It
was observed that the petitioners having been admitted to MBBS and BDS
Courses in pursuance of the prospectus for the year 2013-14, were bound by
the terms and conditions contained therein and were therefore estopped from
raising any challenge. Reliance in that behalf was placed on the decision of
this Court in Cochin University of Science and Technology and another v.
Thomas P. John and others3
. The Single Judge then proceeded to consider
whether the provisions of 1992 Act would apply and get attracted in the
present case. After considering the definition of Educational Institution
under Section 2(e) of 1992 Act, he observed that for the purposes of
application of the provisions of 1992 Act, the concerned Institution must
have been notified by the State Government under the said 1992 Act. It was
further observed that the University was initially established in preindependence
days and merely because the earlier Act was repealed and
replaced by 2013 Act, the first limb of Section 2(b) would not apply without
the State Government referring the University to the Fee Fixation
Committee.
3
(2008) 8 SCC 82
10
10. The correctness of the decision of the Single Judge was questioned by
the students by filing Writ Appeal Nos.1637 and 1638 of 2014. Writ Petition
Nos.6909, 6910, 12515, 27098 and 31848 of 2015 and 14562, 22911 and
26388 of 2016 preferred by some of the students were also heard along with
said writ appeals by the Division Bench of the High Court. By its common
judgment and order dated 26.09.2016 the Division Bench rejected the
challenge and dismissed the appeals. The Division Bench affirmed the
reasoning which weighed with the Single Judge. It went on to observe that
the University was empowered under 2013 Act to fix, demand and receive
such fees as were prescribed.
11. These appeals by special leave question the correctness of the decision
rendered by the Division Bench of the High Court. Mr. Ranjit Kumar,
learned Senior Advocate while leading the arguments on behalf of the
petitioners, submitted that it was completely erroneous on part of the High
Court to observe that the provisions of 1992 Act would not apply in the
present case. He further submitted that on plain reading of its provisions,
1992 Act must apply and get attracted in the present case. These
submissions were countered by Mr. S. Nandakumar, learned Advocate who
appeared for the University. In his submission, the provisions of 1992 Act
11
would not get attracted without an appropriate reference having been made
by the State Government to the Fee Fixation Committee.
12. In the present case the Single Judge considered the definition of
Educational Institution as appearing in Section 2(e) of 1992 Act and came to
the conclusion that for the purposes of application of the provisions of 1992
Act the concerned institution ought to have been notified by the State
Government and an appropriate reference must be made to the Fee Fixation
Committee. This reasoning has been affirmed by the Division Bench. It is,
therefore crucial to consider the scope and ambit of the said provision. For
facility the definition of “educational institution” can be divided in two parts
as under:
Section 2(b) “educational institution” means:
(I) any institution by whatever name called, whether managed by any
person, private body, local authority, trust or University, carrying on
the activity of imparting education leading to a degree or diploma
(including a degree or diploma in law, medicine or engineering)
conferred by any University established under any law made by the
Legislature of the State of Tamil Nadu.
and
12
(II) any other educational institution or class or classes of educational
institutions (other than any educational institution established by the
Central Government or under any law made by Parliament) as the
Government may, by notification, specify.
According to (I) part, the activity must lead to award of degree or
diploma conferred by any University established under any law made by the
Legislature of the State. There is element of certainty about this first part of
definition and it is not left to the discretion of the Government in any
manner. If there is a course which leads to award of degree or diploma by
any University as specified, the concerned institution carrying on the activity
of imparting education would be an educational institution within the
meaning of said Section 2(b).
The definition has an inclusive provision which is specified in the (II)
part and empowers the Government to specify any other educational
institution or class or classes of educational institutions. Upon such
specification by notification, such institution or class or classes of
institutions would also stand covered by the definition. The (II) part also
contains a bracketed portion which is an exclusionary aspect of the
definition. This bracketed portion excludes any institution established by the
13
Central Government or under any law made by the Parliament with respect
to which the State Government cannot, even by exercising power of
specification include such institution.
13. The aforesaid analysis thus conclusively establishes that in so far as
cases covered under (I) Part are concerned, no specification by the
Government is required or necessary. If the concerned activity leads to
award of degree or diploma by any University established under any law
made by the State Legislature, such institution shall be “educational
institution” within the meaning of provisions of Section 2(b). The
specification by notification is a pre-requisite only if the institution
concerned is otherwise not covered under (I) Part. The High Court was
completely in error in observing that for the application by the provisions of
1992 Act an educational institution must always be specified by the
Government by notification. In our view, the requirement of specification of
notification is only in respect of “any other educational institution or class or
classes of educational institutions” and has not to be read with (I) part of
definition, which part of the definition is an independent and stand alone
provision and does not require any specification by the Government.
14
14. The next question which must be considered is whether University in
the present case answers the description in (I) Part of Section 3(b) of 1992
Act. According to Section 3(1) of 2013 Act, on and from the
commencement of said Act the University established under the Annamalai
University Act, 1928 shall be deemed to have been established and
incorporated under the provisions of 2013 Act. It is well settled that
whenever a Legislation deems, by way of legal fiction that a particular state
of affairs has to be assumed, that legal fiction has to be given full effect.
After quoting famous passage of Lord Asquith in East End Dwellings Co.
Ltd. v. Finsbury Borough Council4
, this Court in Gurupad Khandappa
Magdum v. Hirabai Khandappa Magdum and others5
 held that the legal
fiction engrafted in Explanation I to Section 6 of the Hindu Succession must
be given due and full effect. There is thus no escape from the situation that
the University in the present case is the one established under any law made
by the Legislature of the State of Tamil Nadu.
41952 AC 109, 132 =(1951) 2 All ER 587
“If you are bidden to treat an imaginary state of affairs as real, you must
also imagine as real the consequences and incidents which, if the putative state of
affairs had in fact existed, must inevitably have flowed from or accompanied it;
and if the statute says that you must imagine a certain state of affairs, it cannot be
interpreted to mean that having done so, you must cause or permit your
imagination to boggle when it comes to the inevitable corollaries of that state of
affairs.”
5
(1978) 3 SCC 383
15
15. In Islamic (supra), this Court directed constitution of two
Committees, namely, Fee Fixation Committee and Admissions Committee.
Paragraph 7 of the decision dealt with the concept of Fixation of Fee by the
Committee and said paragraph was as under:
“7. So far as the first question is concerned, in our view the
majority judgment is very clear. There can be no fixing of a
rigid fee structure by the Government. Each institute must have
the freedom to fix its own fee structure taking into
consideration the need to generate funds to run the institution
and to provide facilities necessary for the benefit of the
students. They must also be able to generate surplus which must
be used for the betterment and growth of that educational
institution. In paragraph 56 of the judgment it has been
categorically laid down that the decision on the fees to be
charged must necessarily be left to the private educational
institutions that do not seek and which are not dependent upon
any funds from the Government. Each institute will be entitled
to have its own fee structure. The fee structure for each institute
must be fixed keeping in mind the infrastructure and facilities
available, the investments made, salaries paid to the teachers
and staff, future plans for expansion and/or betterment of the
institution etc. Of course there can be no profiteering and
capitation fees cannot be charged. It thus needs to be
emphasized that as per the majority judgment imparting of
education is essentially charitable in nature. Thus the
surplus/profit that can be generated must be only for the
benefit/use of that educational institution. Profits/surplus cannot
be diverted for any other use or purpose and cannot be used for
personal gain or for any other business or enterprise. As, at
present, there are statutes/regulations which govern the fixation
of fees and as this Court has not yet considered the validity of
those statutes/regulations, we direct that in order to give effect
to the judgment in T.M.A. Pai case the respective State
Governments/concerned authority shall set up, in each State, a
committee headed by a retired High Court Judge who shall be
16
nominated by the Chief Justice of that State. The other member,
who shall be nominated by the Judge, should be a Chartered
Accountant of repute. A representative of the Medical Council
of India (in short “MCI”) or the All India Council for Technical
Education (in short “AICTE”), depending on the type of
institution, shall also be a member. The Secretary of the State
Government in charge of Medical Education or Technical
Education, as the case may be, shall be a member and Secretary
of the Committee. The Committee should be free to
nominate/co-opt another independent person of repute, so that
the total number of members of the Committee shall not exceed
five. Each educational institute must place before this
Committee, well in advance of the academic year, its proposed
fee structure. Along with the proposed fee structure all relevant
documents and books of accounts must also be produced before
the Committee for their scrutiny. The Committee shall then
decide whether the fees proposed by that institute are justified
and are not profiteering or charging capitation fee. The
Committee will be at liberty to approve the fee structure or to
propose some other fee which can be charged by the institute.
The fee fixed by the Committee shall be binding for a period of
three years, at the end of which period the institute would be at
liberty to apply for revision. Once fees are fixed by the
Committee, the institute cannot charge either directly or
indirectly any other amount over and above the amount fixed as
fees. If any other amount is charged, under any other head or
guise e.g. donations, the same would amount to charging of
capitation fee. The Governments/appropriate authorities should
consider framing appropriate regulations, if not already framed,
whereunder if it is found that an institution is charging
capitation fees or profiteering that institution can be
appropriately penalised and also face the prospect of losing its
recognition/affiliation.”
16. The directions issued in Islamic (supra) including one regarding
constitution of Fee Fixation Committee came up for consideration in P.A.
17
Inamdar and others v. State of Maharashtra and others6
 and the matter
was settled in following terms:
“151. On Question 4, our conclusion, therefore, is that the
judgment in Islamic Academy insofar as it evolves the scheme
of the two Committees, one each for admission and fee
structure, does not go beyond the law laid down in Pai
Foundation and earlier decisions of this Court, which have been
approved in that case. The challenge to setting up of the two
Committees in accordance with the decision in Islamic
Academy therefore, fails……….....”
17. But the situation in the present matter stands on a slightly different
footing inasmuch as by inserting sub-section (2-A) along with an
explanation in Section 4 in 1992 Act, Fee Fixation Committee is a statutory
mechanism in terms of said provisions of 1992 Act. Said Section 4 shows
that under sub-section (1) the Government is empowered to regulate the
tuition fee or any other fees or deposits in the manner prescribed therein.
But in relation to imparting of education leading to a degree in medicine or
engineering, sub-section (2-A) has been given an overriding effect by
incorporating non-obstante provision. Sub-section (2-A), unlike sub-section
(1), does not require any notification by the Government. If an institution
carries on activity of imparting education leading to a degree or diploma as
spoken of in sub-section (2-A) of said Section 4, the fee structure has to be
that which is fixed by the Committee. The legislative intent is very clear and
6
(2005) 6 SCC 537
18
no educational institution which comes within the scope of sub-section (2-A)
can receive or collect any fees in excess of the amount fixed by the
“Committee on Fixation of Fee”.
18. We now have to deal with the submission whether the University by
virtue of Section 4(13) and 20(1)(m) of 2013 Act could charge, collect and
receive tuition fee without the intervention of “Committee on Fixation of
Fee” as contemplated by Section 4(2-A) of 1992 Act. The University by its
very nature of activities would be running numerous courses and to that
extent provisions of 2013 Act are general in nature. The provisions of
Section 4(2-A) of 1992 Act are specific and special and apply to courses
leading to degrees in Medicine and Engineering. Therefore, insofar as
professional courses leading to degrees in Medicine and Engineering are
concerned, the matter must be screened and assessed by Committee on
Fixation of Fee and the submission that the University was entitled to fix
fees on its own without the intervention of such Committee has to be
rejected. The other submission that the students were estopped from raising
a challenge must also fail. If a particular modality is prescribed by the
Legislature any action in defiance or ignorance of such modality cannot be
protected or preserved on the plea of estoppel. The reliance placed on the
decision of this Court in Cochin University of Science and Technology
19
(supra) was also misplaced. In that case students who had taken admission
in NRI Quota, thereafter contended that their fee structure be slashed to the
same level as applicable to non NRI students. The concept of estoppel was
pressed into service while rejecting said submission but that cannot be a
ground to deny the express protection available under a legislation.
19. We, therefore, allow these appeals and set aside the judgments and
orders under appeal. We hold that the University was not entitled and
competent to devise its own fee structure in the present matter without
having the fee fixed by the Committee on Fixation of Fee as contemplated
under 1992 Act. The matters shall therefore have to be referred to said
Committee and the University is directed to place the entire material
including its balance-sheet and accounts before the Committee on Fixation
of Fee within two weeks from the date of this Judgment. The Committee
shall thereafter bestow attention and fix appropriate fee structure for the
academic year 2013-14 onwards. It goes without saying that if the fee
structure fixed by the University is found by the Committee to be
inappropriate, consequential benefit and advantage shall be given to each
and every student. The Committee shall fix the appropriate fee structure for
the current academic Session 2018-19 as well. The entire exercise shall be
completed by 31.08.2018.
20
20. These appeals stand allowed in aforesaid terms. No costs.
……………..…………J.
(Arun Mishra)

………………..………J.
(Uday Umesh Lalit)
New Delhi,
July 13, 2018

whether the petitioner had preferential right to match the lowest bid without pre-qualifying or participating in the bidding process.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3288 OF 2018
NATIONAL HIGHWAYS AUTHORITY OF INDIA …..Appellant(s)
:Versus:
GWALIOR JHANSI EXPRESSWAY LIMITED ....Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. This appeal emanates from the decision of the High Court
of Delhi at New Delhi dated 21st August, 2017 in Appeal ARB.A
(Comm.) No.20 of 2017 whereby the appeal filed by the
appellant under Section 37(2)(b) of the Arbitration and
Conciliation Act, 1996 (for short, “the Act”) seeking to quash
the order dated 24th May, 2017 passed by the Arbitral Tribunal
under Section 17 of the Act came to be dismissed. The Arbitral
Tribunal vide order dated 24th May, 2017 allowed the
2
application preferred by the respondent (claimant) under
Section 17 of the Act seeking a direction to the appellant to
allow the respondent to exercise an option to match the lowest
bid in terms of the order dated 23rd July, 2016 passed by the
Arbitral Tribunal and including to exercise Right of First
Refusal (“ROFR”) and for other consequential reliefs.
2. Shorn of unnecessary details, some of the relevant facts
are that the appellant (a body corporate, constituted under
the National Highways Authority of India Act, 1988) entered
into a Concession Agreement dated 17th December, 2006 with
the respondent (a consortium comprising of Apollo Enterprises
Limited and D.S. Construction Limited) for works of widening
the existing two-lane portion of Km 16.000 to Km 96.127 on
National Highway No.75 to four lanes in the States of Uttar
Pradesh and Madhya Pradesh on the terms and conditions
specified therein. The appellant asserts that the respondent
failed to undertake the project work at the requisite pace, inter
alia, due to inadequate deployment of machinery, plant,
material and manpower. The respondent had merely achieved
3
62% progress and eventually abandoned the project site in
March, 2012. The appellant, therefore, had to issue a Cure
Period Notice dated 19th October, 2013 requiring the
respondent to cure the breaches within 30 days from receipt of
the notice, failing which the appellant may be forced to initiate
further action to terminate the contract in terms of the
Concession Agreement. The respondent denied the correctness
of the stated notice by a written reply. The appellant then
issued letters dated 27th February, 2014 and 7th March, 2014
expressing its intention to issue termination notice of the
Concession Agreement. The respondent immediately rushed to
the court by filing a petition under Section 9 of the Act seeking
stay of the Cure Period Notice dated 19th October, 2013 as well
as the notice expressing the intention to issue termination
notice. The High Court of Delhi passed an interim stay on 12th
March, 2014 restraining the appellant from taking any
coercive action. The petition under Section 9 of the Act was
finally disposed of on 22nd April, 2015 with a direction to the
Arbitral Tribunal, which was already constituted in the
meantime, that the interim order dated 12th March, 2014
4
would continue during the pendency of the arbitral
proceedings with liberty to the parties to seek its modification
or revocation before the Arbitral Tribunal.
3. The appellant accordingly moved an application dated 8th
April, 2016 under Section 17 of the Act before the Arbitral
Tribunal seeking permission to complete the balance works of
the project as it was causing huge distress due to traffic
congestion, unsafe highway, increase in expenditures, higher
wear and tear of the vehicles and, in particular, national loss
to the public at large. The respondent also filed an application
under Section 17 of the Act on 17th May, 2016 seeking interim
directions against the appellant to pay Rs.400 crores to the
respondent at the risk and costs of the respondent for
completing the balance works of the project. The reliefs
claimed in the application filed by the respondent read thus:
“a) Allow the present application and as an interim
measure direct the Respondent to pay a sum of Rs.400
Crores to the Claimant at the risk and cost of the Claimant
so as to complete balance/remnant works of the project;
b) In the alternative and strictly without prejudice to
the prayer (a), as an interim measure permit the
Respondent to invite tender/bid for executing the
5
balance work under the Concession Agreement on
Engineering Procurement and Construction basis subject
to Claimant being granted the right of First Refusal for
matching the lowest bid and in the event the Claimant
matches the said lowest bid permit the Claimant to
complete the said balance/remnant works on the terms
and conditions of the tender/bid invited on Engineering
Procurement and Construction basis except for the
provision, if any, for furnishing Bank Guarantees;
c) In alternative and strictly without prejudice to the
prayer (a) & (b), direct the Respondent to act in terms of their
letter dated 19.01.2016 and the Circular dated 09.06.2015
in the event prior to the award of contract of the balance
work on Engineering Procurement and Construction basis
the Project Lenders of the Claimant agree to provide first
charge to the Respondent;
d) Pass such further order and other relief(s) as this
Hon‟ble Tribunal may be deem fit, just, necessary and
appropriate in the facts and circumstances of the case.”
(emphasis supplied)
4. During the pendency of the aforementioned proceedings
before the Arbitral Tribunal, a meeting was held on 19th April,
2016 in the Chamber of Member (P) at NHAI – HQ to discuss
and conclude the issues of Gwalior-Jhansi project pursuant to
Ministers‟ meeting dated 15th March, 2016 in order to get the
work restarted without further delay. Another meeting was
convened on 27th April, 2016 before the said Authority, as a
result of which the hearing of the matter was deferred till 18th
6
May, 2016. On the adjourned date, the advocate appearing
for the appellant placed reliance on the minutes of the
meetings held on 19th April, 2016 and 27th April, 2016. The
hearing of the applications was then deferred till 29th May,
2016, as the respondent submitted a construction-linked
financial plan for completing the balance work within a
maximum period of 24 months from the date of receipt of
advance payment from the appellant. The appellant filed its
response on 28th May, 2016 to the proposal submitted by the
respondent. The appellant asserted that the financial plan
submitted by the respondent was not in accord with the NHAI
Circular dated 19th June, 2015. In the meantime, on 25th
May, 2016, the respondent filed its reply to the application
filed by the appellant under Section 17 of the Act. The
appellant had stated that it was agreeable to infuse funds for
completion of the project as per the policy with condition of
first charge of NHAI, considering the larger public interest.
The respondent accepted the offer given by the appellant
including the conditions specified by the appellant.
7
The conditions suggested by the appellant have been noted by
the Arbitral Tribunal as under:
“(i) As the Respondent is a public body, in the event of the
lowest bidder being denied the work, it will require to be
compensated. For this purpose Claimant/Concessionaire
shall pay to the authority a sum of Rs.2% of the bid amount,
out of which 75% shall be paid to the lowest bidder. This is
on the lines agreed by the parties and provided in the
Concession Agreement based on Model Concession
Agreement (MCA).
(ii) The Respondent shall not pay any „Mobilization
Advance‟ without Bank Guarantee being furnished for the
equivalent amount. The advance shall be at the interest at
the rate of 2% more than the prevailing bank interest.
(iii) The work shall be completed by the Claimant in a
period of 24 months from the date of LOA for the
Construction Contract.
(iv) The terms and conditions of the Construction
Agreement shall be in addition to and not in substitution of
any terms and condition of the Concession Agreement. In the
event of any disparity the terms of the Concession Contract
shall prevail.
(v) The specifications and quality of construction shall not
be lower than stipulated in the Concession Agreement.
(vi) The Respondent shall be free to bring forward
consequential additional claims for the expenses incurred
and damages suffered.”
The respondent, through counsel, informed the Arbitral
Tribunal that the respondent would accept the
aforementioned conditions except condition No.(ii).
8
5. The arguments were heard by the Arbitral Tribunal
on 28th May, 2016. Before the application filed by the
parties under Section 17 of the Act could proceed further,
the appellant filed an application under Section 23 of the
Act for amendment of its reply dated 25th May, 2016 so
as to withdraw its acceptance of prayer (b) for
modification of procedure order No.9 dated 28th May,
2016, for the reasons mentioned therein. Finally, the
Arbitral Tribunal disposed of the applications by a
common order dated 23rd July, 2016. It accepted the
relief claimed by the respondent in terms of prayer clause
(b) of its application, reproduced in paragraph 3 above.
6. The Arbitral Tribunal rejected the plea of the
appellant to withdraw from its earlier offer noted in the
reply affidavit. The Arbitral Tribunal inter alia observed
thus:
“ . . . . .
NHAI had taken a specific stand before us that it would not
agree to prayer (a) made by the Claimant. Tribunal therefore
granted time to NHAI to examine and come out with concrete
proposals in respect of prayer (b) and on the unilateral
conditions suggested by NHAI itself, an order to that effect
9
was passed by the Tribunal on May 18, 2016. Conditions
stipulated by NHAI, it is seen, are more stringent than what
were suggested by CCEA in its meeting held on May 13,
2015, particularly in the CCEA decision made on October
14, 2015, where in CCEA stated that after the constructions,
loans can be recovered bi-annually through execution of a
tripartite agreement between NHAI, lender and
concessionaire. Policy endorsed by CCEA takes note of the
comfort level of not only that of NHAI, citizens and travellers,
but also of the concessionaire. We have to take it, that it was
after taking into consideration all those aspects including
the policy decisions taken by CCEA and the Claimant‟s
eligibility for one time fund infusion in terms of the Circular
dated June 9, 2015, the NHAI suggested various conditions
and all those conditions were accepted by the Claimant
including the furnishing, of Bank Guarantee for the
mobilization advance to be made by NHAI. We are of the view
that by furnishing the unconditional Bank Guarantee, the
interest of NHAI is also protected.
We find that NHAI has no case that the Claimant has been
blacklisted or that it is incapable of completing the balance
work. In our view, it would not be in public interest if the
remaining work is allotted to a third party and in the facts
and circumstances, one cannot rule out the possibility of
passing the same order, even if NHAI is allowed to withdraw
the unilateral conditions suggested by it.
The Tribunal in its order dated May 25, 2016, also made it
clear that only if the Claimant would agree to all the
conditions stipulated by NHAI, the Claimant would be
granted permission to complete the balance work. The
Claimant has now filed an affidavit before the Tribunal that
all the conditions stipulated by NHAI are acceptable to it,
that being the factual position, we find no reason to
entertain the application preferred by NHAI under Section 23
of the Act seeking amendment in its reply dated May 25,
2016, to the Claimant‟s Sec 17 application, so as to
withdraw the conditions unilaterally suggested by it.
We are also of the view that the reasons stated for
modification of Procedural Order No.9 dated May 28, 2016,
cannot be sustained in the facts and circumstances of the
case and we find it difficult to accept the contention that the
specific conditions stipulated by NHAI to the alternative
prayer (b) made by the Claimant in Sec 17 Application have
been made without application of mind or that the so called
„higher management‟ was unaware of the pendency of this
arbitration proceedings as well as the pendency of the Sec 17
10
applications filed by the parties and the various meetings
held in respect of this matter at HQ of NHAI and the
participation of Lead Bank, the Claimant and the officials of
NHAI and the meaning and content of the policy laid down
by CCEA. Sec 17 Application preferred by NHAI would
therefore stand dismissed and prayer (b) made by the
Claimant in its Sec 17 Application stands allowed subject to
the conditions stipulated by NHAI.
NHAI is directed to take up follow up action on the basis of
this order, within two weeks from today and submit a report
to that effect within a month. Claimant is directed to
scrupulously follow the conditions imposed by NHAI for
accepting prayer (b). Claimant is further directed to submit
quarterly reports before the Tribunal of the progress of the
balance work undertaken by it on the basis of the order of
this Tribunal. The Claimant is directed to furnish Bank
Guarantee from a nationalised bank on the mobilization
advance to be made by NHAI within the time stipulated. Both
sec 17 Applications and the Application made by NHAI under
Sec 23 of the Act are disposed of as above, reserving all the
contentions raised by the parties in the main matter.
This order as well as the observations and findings recorded
will have no bearing on the ultimate disposal of the main
matter.”
7. The appellant acquiesced to the aforementioned interim
order passed by the Arbitral Tribunal and allowed it to attain
finality. For, the subject project was on Build Operate and
Transfer (“BOT”) basis, any amount incurred by the Authority
with regard to the project or in relation to the completion of
the balance work was liable to be reimbursed by the
Concessionaire (respondent).
11
8. The appellant accordingly issued a tender for the balance
work vide Notice dated 28th November, 2016 which fact was
brought to the notice of the Arbitral Tribunal during the
hearing on 10th December, 2016. The tender notice was placed
in the public domain, as is done in the case of other tender
process. Some of the pertinent clauses of the tender
documents may be appositely reproduced for considering the
matter in issue before us. In the bidding document, Volume I,
regarding Invitation for Bids (“IFB”), it was noted that sealed
bids were invited (technical and financial) from eligible bidders
for the construction and completion of the balance work
detailed in the table given in the said document. Clause (1)
postulated that eligibility of bidders would be assessed on post
qualification basis, amongst others. The financial bid in the
second part would be opened of only those bidders whose
technical bids were responsive to eligibility and qualification
requirements as per the Request for Proposal (“RFP”). Further,
clause (7) of the IFB reads thus:
“7. The Bidders may take notice of the following:
Notwithstanding anything to the contrary contained in this
RFP, as per the direction of Hon‟ble Arbitral Tribunal, if the
12
BOT-Annuity concessionaire (M/s Gwalior Jhansi
Expressway Ltd.) of Four lane project (Gwalior-Jhansi
section of NH-75, is also a responsive bidder, the
Concessionaire shall have the option of matching the
lowest bid in terms of the selection criteria, subject to
payment of 2% (two per cent) of the bid amount to the
Authority and thereupon becomes the selected Bidder.
……………...”
 (emphasis supplied)
In Section I of the bid document providing for procedure
for tender document of the Instructions to Bidders, the
eligibility of bidders has been specified in clause (3)
thereof which reads thus:
“3. Eligible Bidders
3.1 Eligibility of bidders is based on bidder meeting the
pass/fail criteria regarding their general and particular
experience, financial position, personnel and equipment
capabilities and other relevant information as demonstrated
by the applicant‟s responses on the forms attached.
3.2. This invitation for bids is open to bidders meeting the
following requirements:-
a) xxx xxx xxx
b) xxx xxx xxx
c) xxx xxx xxx
d) xxx xxx xxx
“(e) Notwithstanding anything to the contrary contained in
this REP, as per the direction of Hon‟ble Arbitral Tribunal, if
the BOT-Annuity concessionaire (M/s Gwalior Jhansi
Expressway Ltd.) of Four lane project (Gwalior-Jhansi
section of NH-75, is also a responsive bidder, the
Concessionaire shall have the option of matching the
lowest bid in terms of the selection criteria, subject to
payment of 2% (two per cent) of the bid amount to the
Authority and thereupon becomes the selected Bidder. Out
of the amount so received by the Authority (ILLEGIBLE) 5%
13
of the amount shall be paid by the Authority to the lowest
bidder. For the avoidance of doubt, it is clarified that no
claim for compensation, damages, loss of profits etc. by the
lowest bidder for unbecoming selected bidder, shall be
admissible from the Authority.
(f) Notwithstanding anything to the contrary contained in
this RFP, for the purposes of eligibility and qualification of
the BOT-Annuity concessionaire (M/s Gwalior Jhansi
Expressway Ltd.), if it has participated in the bidding
process, it shall be deemed to fulfill all the requirements
of Clauses 3 to 6 of the RFP, being the existing
concessionaire of the Four lane project (Gwalior-Jhansi
section of NH-75.”
 (emphasis supplied)
Again in clause 26, it is stated thus:
“26. Examination of Technical Bids and Determination of
Responsiveness of Technical Bids
x x x x x x x x x x x x
26.8 Notwithstanding anything to the contrary contained in
this RFP, as per the direction of Hon‟ble Arbitral Tribunal, if
the BOT-Annuity concessionaire (M/s Gwalior Jhansi
Expressway Ltd.) of Four Lane project (Gwalior-Jhansi
section of NH-75, is also a responsive bidder, the
Concessionaire shall have the option of matching the
lowest bid in terms of the selection criteria, subject to
payment of 2% (two per cent) of the bid amount to the
Authority and thereupon becomes the selected bidder, Out of
the amount so received by the Authority, 75% of the amount
shall be paid by the Authority to the lowest bidder. For the
avoidance of doubt, it is clarified that no claim for
compensation, damages, loss of profits etc. by the lowest
bidder for unbecoming selected bidder, shall be admissible
from the Authority.
26.9 Notwithstanding anything to the contrary contained in
this RFP, for the purposes of eligibility and qualification of
the BOT-Annuity concessionaire (M/s Gwalior Jhansi
Expressway Ltd.), if it has participated in the bidding
14
process, it shall be deemed to fulfill all the requirements
of Clauses 3 to 6 of the RFP, being the existing
concessionaire of the Four lane project (Gwalior -Jhansi
section of NH-75).
27. Opening of Financial Bids.
xxx xxx xxx xxx
27.5 Notwithstanding anything to the contrary contained in
this RFP, as per the direction of Hon‟ble Arbitral Tribunal, if
the BOT-Annuity concessionaire (M/s Gwalior Jhansi
Expressway Ltd.) of Four lane project (Gwalior-Jhansi
section of NH-75, is also a responsive bidder, the
Concessionaire shall have the option of matching the
lowest bid in terms of the selection criteria, subject to
payment of 2% (two per cent) of the bid amount to the
Authority and thereupon becomes the selected Bidder. Out
of the amount so received by the Authority, 75% of the
amount shall be paid by the Authority to the lowest bidder.
For the avoidance of doubt, it is clarified that no claim for
compensation, damages, loss of profits etc. by the lowest
bidder for unbecoming selected bidder admissible from the
Authority.
27.6 Notwithstanding anything to the contrary contained in
this RFP, for the purposes of eligibility and qualification of
the BOT-Annuity concessionaire (M/s Gwalior Jhansi
Expressway Ltd.), if it has participated in the bidding
process, it shall be deemed to fulfill all the requirements of
Clauses 3 to 6 of the RFP, being the existing concessionaire
of the Four lane project (Gwalior-Jhansi section of NH-75).”
 (emphasis supplied)
In clause 30, it is observed thus:
“30. Examination of Financial Bids and Determination of
Responsiveness of Financial Bids
xxx xxx xxx xxx
15
30.4 Notwithstanding anything to the contrary contained in
this RFP, as per the direction of Hon‟ble Arbitral Tribunal, if
the BOT-Annuity concessionaire (M/s Gwalior Jhansi
Expressway Ltd.) of Four lane project (Gwalior Jhansi
section of NH-75, is also a responsive bidder, the
Concessionaire shall have the option of matching the lowest
bid in terms of the selection criteria, subject to payment of
2% (two per cent) of the bid amount to the Authority and
thereupon becomes the selected Bidder. Out of the amount
so received by the Authority, 75% of the amount shall be
paid by the Authority to the lowest bidder. For the avoidance
of doubt, it is clarified that no claim for compensation,
damages, loss of profits etc. by the lowest bidder for
unbecoming selected bidder, shall be admissible from the
Authority.
30.5 Notwithstanding anything to the contrary contained in
this RFP, for the purposes of eligibility and qualification of
the BOT-Annuity concessionaire (M/s Gwalior Jhansi
Expressway Ltd.), if it has participated in the bidding
process, it shall be deemed to fulfill all the requirements
of Clauses 3 to 6 of the RFP, being the existing
concessionaire of the Four lane project (Gwalior-Jhansi
section of NH-75).”
 (emphasis supplied)
9. In consonance with the tender documents as uploaded
on E-Tender Portal 2016, technical bids were opened on 5th
January, 2017 and financial bids were opened on 29th March,
2017. It is only thereafter on 25th April, 2017, the respondent
moved an application before the Arbitral Tribunal under
Section 17 of the Act, seeking, inter alia, permission of the
Arbitral Tribunal to complete the balance work at its risk and
16
cost. In the said application, it was asserted that the
respondent verily believed that it would get an opportunity to
exercise the option of ROFR and match the lowest bid, in
terms of the order dated 23rd July, 2016. However, to its utter
shock, surprise and dismay, it was reliably learnt on the
previous day (to the filing of the application) that the
appellant was proceeding to conclude the tender process by
issuing LOI/LOA in favour of the L-1 bid behind the back of
the respondent and in a highly surreptitious and opaque
manner. On the basis of the said assertions, the respondent
in its application filed under Section 17 of the Act prayed thus:
“a) Allow the present application and direct the
respondent to grant first right of refusal to the claimant for
matching the lowest bid, in terms of the order dated
23.07.2016 passed by this Hon‟ble Tribunal;
b) Pending hearing and disposal of the present
Application, pass an ex-parte ad-interim Order, directing the
Respondent to not issue LoI/LoA or award the works or take
any further steps, in any manner, directly or indirectly, in
favour of any party, pursuant to the Notice Inviting Tender
published by the Respondent on 28.11.2016;
c) Confirm prayer (b) upon issuance of notice;
d) Pass such further order and other relief(s) as this
Hon‟ble Tribunal may be deemed fit, just, necessary and
appropriate in the facts and circumstances of the case.”
17
10. This application was resisted by the appellant by filing a
reply affidavit. The appellant asserted that the respondent
chose to remain silent during the entire period and only at the
belated stage when the tender process was nearing
completion, it has chosen to file the application with the
intention of stalling the entire process. This approach cannot
be countenanced. The appellant also asserted that it was
unfathomable that the respondent would get the right to
match the lowest bid without participating in the bidding
process. Further, an application such as this would delay the
progress of the main arbitration proceedings which was
required to be completed within one year. It was thus asserted
by the appellant that the ROFR could be invoked by the
respondent only if it had participated in the bidding process.
The appellant adverted to the terms and conditions of the
tender documents which unambiguously mandated the
respondent to participate in the tender process, coupled with
the fact that there was no express direction given by the
Arbitral Tribunal so as to give any right or cause of action to
the respondent to contend to the contrary. The appellant
18
beseeched the Arbitral Tribunal to allow it to take the tender
process to its logical end.
11. Admittedly, no rejoinder was filed by the respondent to
the specific plea taken by the appellant in the reply affidavit
that despite having knowledge of the condition in the tender
documents requiring the respondent to participate in the
tender process, it failed to do so for reasons best known to the
respondent.
12. The Arbitral Tribunal vide order dated 24th May, 2017
allowed the application preferred by the respondent by inter
alia observing as follows:
“The Tribunal while examining both the 17 Applications
preferred by the parties specifically noticed that the
Claimant had completed more than 65% of the work though,
NHAI took the stand that the physical progress was only
62.13%. Claimant took the stand that it had completed more
than 73% work. Considering the fact that so much of money
and labour had been invested by the Claimant, and at the
same time safeguarding the interest of NHAI, the Tribunal
passed the order dated 23.7.2016 directing the Respondent
to grant the Claimant the right of first refusal for matching
the lowest bid. The Tribunal also felt that involvement of
third parties would also create more problems. The Tribunal,
therefore, ordered in the event Claimant matches the lowest
bid, Claimant be permitted to complete the balance work
that too by periodically submitting reports before the
Tribunal so that the Tribunal can examine whether the
19
Claimant is successfully completing the balance work to the
satisfaction of NHAI. In our view, the stand taken by the
Respondent that the first right of refusal can be granted to
the Claimant only if it had participated in the bidding
process cannot be sustained. Accordingly, reliefs sought for
by the Claimant in the Application dated 25.4.2017 are
granted”.
13. Against this decision, the appellant filed an appeal under
Section 37(2)(b) of the Act before the High Court of Delhi at
New Delhi. The same was dismissed on 21st August, 2017. The
High Court upheld the view taken by the Arbitral Tribunal by
inter alia observing thus:
“12. It is quite clear from a perusal of the earlier order
dated 23.07.2016 that the respondent was granted right of
first refusal by matching the lowest bid, and if it matched the
bid the respondent was to be permitted to complete the
balance work as stated. There was no directions that the
respondent was obliged to participate in the bid. They had
been given the right to match the lowest bidder, subject to
terms and conditions and in that eventuality of their
matching the lowest bid, they were to be given the right to
carry out the balance work. The insistence of the appellant
that the respondent ought to have participated in the bid
floated pursuant to the order of the learned Arbitral Tribunal
dated 23.07.2017 is misplaced.
13. Learned counsel for the appellant was, several times
asked as to what prejudice is caused by the respondent by
not participating in the bid. The only reply made by the
learned counsel for the appellant was that in the absence of
participation in the bid by the respondent, the appellant is
unable to ascertain whether the respondent was eligible to
be a bidder or not. In my opinion in the light of the orders of
the Learned Arbitral Tribunal dated 23.07.2016 the
20
appellant was not to participate in the bid. The apprehension
of the appellant are entirely misplaced.
14. No prejudice is caused to the appellant. It is manifest
that other than insistence on compliance by the respondent
of a procedural requirement, there is no prejudice caused to
the appellant by non participation of the respondent in the
bidding process. Further the impugned directions are passed
in accordance with the earlier orders of the Learned Arbitral
Tribunal dated 23.07.2016 which has not been challenged
and attained finality. There is no merit in the present appeal
and the same is dismissed.”
14. The appellant has assailed the decision of the Arbitral
Tribunal dated 24th May, 2017 and of the High Court dated
21st August, 2017 on the argument that the respondent
cannot be permitted to exercise ROFR sans participating in
the bidding process and in the teeth of the terms and
conditions of the tender documents. According to the
appellant, the Court cannot interfere with the tender process
and in particular with the modalities adopted for re-tendering
of the balance work of the project. The process of evaluation
of tender and awarding the contract are essentially commercial
functions for which reason the Courts should refrain from
exercising judicial review, especially when the decision taken
by the statutory authority is bona fide and taken in public
interest. Further, the order of the Arbitral Tribunal dated 23rd
21
July, 2016 in no way, much less expressly, exempts the
respondent from participating in the bidding process nor has
any stipulation been placed on the appellant to refrain from
incorporating a condition requiring the respondent to
participate in the tender process along with others. In that
case, all concerned including the respondent, were bound by
the terms and conditions specified in the tender documents.
The fact that the respondent was deemed to possess technical
qualifications would not and does not do away with the
essentiality of participating in the subject bidding process, the
purpose whereof is to ensure a fair competition amongst the
participants and, more particularly, to get a fair offer and the
best value for money in a scientific and transparent manner,
encouraging competition between the participants and also to
give them equal opportunity. It is contended that the order of
the Arbitral Tribunal, be it dated 23rd July, 2016 or dated 24th
May, 2017, is in excess of jurisdiction as it transcends beyond
the purport of Section 17 of the Act. For, it was not open to
the Arbitral Tribunal to pass an interim order concerning a
separate contract albeit facilitating completion of the
22
unfinished and incomplete works of the project. It is
contended that it is well settled position that the prerogative to
formulate the terms and conditions of the tender document is
that of the employer and the Court cannot sit in appeal over
such conditions. Nor can the same be re-written or modified
much less when it has not been challenged by the respondent.
It is contended that the fact that the respondent qualified the
technical bids in 2006, will not by itself qualify it for retendering
bid process in 2016. Having failed to participate in
the bid process in 2016, it was not possible to examine the
eligibility and qualification of the respondent in the context of
tender documents of 2016. Further, a person or entity who
stands out of the tender process or fails to comply with the
terms and conditions of the tender documents cannot acquire
any right or interest much less actionable claim in respect of
such tender process. According to the appellant, the
respondent must take the consequences of non-participation
in the subject tender process and cannot be allowed to
interdict the same in absence of an express exemption granted
by the competent forum/Authority to the respondent not to
23
participate in the tender process and yet exercise ROFR. To
buttress the aforesaid submission, reliance has been placed
on the decision of the Delhi High Court in VHCPL-ADCC
Pingalai Infrastructure Pvt. Ltd. & Anr. Vs. Union of India
& Ors.1 and on the decision of the Appellate Tribunal for
Electricity in M/s. Raj West Power Limited & Anr. Vs.
Rajasthan Electricity Regulatory Commission & Ors.2
15. The respondent on the other hand, would contend that
no interference in this appeal is warranted in view of the
concurrent view taken by the Arbitral Tribunal as well as the
High Court that it was not necessary for the respondent to
participate in the tender process to exercise ROFR. For, the
order dated 23rd July, 2016 does not prescribe such a precondition
nor does it prohibit the respondent from exercising
the ROFR without participation in the bidding process. It is
contended that the order dated 23rd July, 2016 is based on
consent of the parties and has never been challenged by the
appellant and as such, the appellant was obliged to comply

1
 2010 SCC Online Del 2687
2
 2013 SCC Online APTEL 46
24
with the same in its letter and spirit. According to the
respondent, having completed 78% work of the Project (which
according to the appellant, is only around 62%) and having
invested Rs.715 crores on the Project, by no stretch of
imagination can the respondent be termed as a non-serious
contender. According to the respondent, the appellant cannot
be heard to challenge the order dated 23rd July, 2016, which
confers ROFR, as it was based on consent of the parties and
also attained finality. Further, the purpose of participating in
the bidding process was only to ascertain as to whether the
offer given by the bidder was a responsive offer. The
respondent having already completed substantial work of the
Project, by no stretch of imagination, can be said to be
incapable of completing the balance work. This aspect had
commended to the Arbitral Tribunal, as can be discerned from
the order dated 23rd July, 2016. The Arbitral Tribunal in that
order also unambiguously recorded that it was not the case of
the appellant herein that the respondent had been black listed
or was incapable of completing the balance work. Not only
that, the Arbitral Tribunal went on to observe that it would not
25
be in the public interest to allow a third party to take over the
balance work of the project. On that basis, direction was given
to the appellant to allow the respondent to exercise ROFR,
subject to certain conditions. The order passed by the Arbitral
Tribunal, in essence, was on the basis of consent of the
respondent with unilateral conditions imposed by the
appellant, which the appellant should not be allowed to resile.
According to the respondent, it was impermissible for the
appellant to incorporate conditions such as clauses 3, 26, 27
and 30 in the tender documents, as the same are in the teeth
of order dated 23rd July, 2016 passed by the Arbitral Tribunal
and, more so, without seeking liberty from the Arbitral
Tribunal in that behalf. It is contended that the purpose of the
tender process is only to evoke responsive offers. There would
be no logic or rationale for participation of the respondent in
the backdrop of clause 3.2(f) which is a deeming provision
virtually declaring the respondent as eligible and qualified for
the work. The capability of the respondent to complete the
balance work was never in doubt as has been recorded by the
Arbitral Tribunal. In any case, in the absence of liberty given
26
by the Arbitral Tribunal, it was not open to the appellant to
incorporate such a pre-condition in the tender document. It is
contended that such pre-condition would require the
respondent to furnish bid security amount in which case it
would be a fait accompli situation for the respondent if it were
to refuse or fail to match the lowest bid. For, it would result in
forfeiture of its bid security and also entail in black listing. The
order dated 23rd July, 2016, is one of ROFR and not for right
to participate in the bidding process as such. Further, the
submission of financial bid by the respondent was not to find
out whether it is L-1. In that, all the bidders participating in
the subject tender process pursuant to tender notice, were
made fully aware in the bid document itself that the
respondent had ROFR and L-1 would be compensated by the
respondent as provided in the order dated 23rd July, 2016.
Therefore, the respondent was not expected to bid with itself
by submitting a financial bid and then matching the same.
The respondent would contend that the appellant has wrongly
asserted that the respondent was aware of the conditions
prescribed in the tender documents and yet did not choose to
27
participate in the bidding process. For, the bid documents
were neither furnished to the respondent nor placed on record
before the Arbitral Tribunal. Thus, the conditions on which
reliance has now been placed by the appellant were never
pointed out to the respondent or to the Arbitral Tribunal at
any point of time. In any case, the appellant had completely
failed to show as to what prejudice would be caused by
allowing the respondent to exercise ROFR without
participating in the tender process. The learned Single Judge
of the High Court repeatedly made queries in that behalf
which was not explained by the appellant, as is noted in the
impugned judgment. Resultantly, the High Court rejected the
plea of the appellant and held that it was not necessary for the
respondent to participate in the bidding process in terms of
order dated 23rd July, 2016, to exercise ROFR. The respondent
has distinguished the two decisions relied upon by the
appellant and would contend that the same do not lay down
any legal principle that participation in the bidding process is
a condition precedent for exercise of ROFR. It is contended, in
the present case, the ROFR, without condition of participation
28
in the bid, was granted by the Arbitral Tribunal on the basis of
consent of the parties. It is contended that in view of the
concurrent view taken by the Arbitral Tribunal as also the
High Court, this Court should be slow in entertaining this
appeal.
16. We have heard Mr. K.K. Venugopal, learned Attorney
General for India and Mr. Mukul Rohatgi, learned senior
counsel appearing for the respondent.
17. The issue involved in the present appeal ostensibly
concerns the justness of the order passed by the Arbitral
Tribunal and affirmed by the High Court on an application
moved by the respondent (claimant) under Section 17 of the
Act in the pending arbitral proceedings. However, in essence,
the subject matter of the application under consideration
relates to the rights and liabilities of the parties in respect of a
tender process for awarding of a contract in relation to the
unfinished and balance work of the Highway Project.
29
18. While considering the relief claimed by the respondent
(claimant), the same should have been tested on the
touchstone of the principle governing the tender process,
especially when the validity of the tender document has not
been put in issue or challenged before any competent forum.
Going by the terms and conditions in the tender documents,
as already alluded to in paragraph 8 above, there is no tittle of
doubt that the right of the claimant (respondent) to match the
bid of L-1 or to exercise ROFR would come into play only if the
respondent was to participate in the tender process pursuant
to the notice inviting tenders from the interested parties. The
objective of tender process is not only to adhere to a
transparent mechanism but to encourage competition and give
equal opportunity to all tenderers with the end result of
getting a fair offer or value for money. The plain wording of the
eligibility clause in the tender documents and the incidental
stipulations make it explicit that the respondent was required
to participate in the tender process by submitting its sealed
bid (technical and financial). The fact that a deeming clause
has been provided in the tender document that if the
30
respondent was to participate in the bidding process, it shall
be deemed to fulfill all the requirements of the tender clauses
3 to 6 of the RFP, being the existing concessionaire of the
Project, does not exempt the respondent from participating in
the tender process; rather the tenor of the terms of the
documents made it obligatory for the respondent to participate
in the tender process to be considered as a responsive bidder,
along with others. Having failed to participate in the tender
process and, more so, despite the express terms in the tender
documents, validity whereof has not been challenged, the
respondent cannot be heard to contend that it had acquired
any right whatsoever. Only the entities who participate in the
tender process pursuant to a tender notice can be allowed to
make grievances about the non-fulfillment or breach of any of
the terms and conditions of the concerned tender documents.
The respondent who chose to stay away from the tender
process, cannot be heard to whittle down, in any manner, the
rights of the eligible bidders who had participated in the
tender process on the basis of the written and express terms
and conditions. At the culmination of the tender process, if
31
the respondent had not participated, in law, the offer
submitted by the eligible bidders is required to be considered
on the basis of the stated terms and conditions. Thus, if the
claim of the respondent was to be strictly adjudged on the
basis of the terms and conditions specified in the subject
tender document, the respondent has no case whatsoever.
19. The gravamen of the plea taken by the respondent is on
the assumption that the interim order passed by the Arbitral
Tribunal on 23rd July, 2016 bestows unconditional right on
the respondent to exercise ROFR, in the event tender process
in respect of the balance work is resorted to. For that, we may
straightway advert to the order dated 23rd July, 2016. That is
an order granting prayer clause (b) in the application preferred
by the respondent under Section 17 of the Act. The same has
been reproduced in paragraph 3 above. Notably, there is
nothing in the entire application (filed by the respondent
under Section 17 of the Act) to even remotely suggest that the
respondent had prayed in clause (b) that it be exempted from
participating in the proposed tender process as such, and
32
could yet exercise ROFR before the letter of intent was to be
issued to the lowest bidder. The exemption in this regard
cannot be inferred. It has to be an express exemption sought
and so granted and disclosed in the tender documents. The
respondent may be right in contending that the interim order
passed by the Arbitral Tribunal dated 23rd July, 2016 neither
prescribes that the respondent must participate in the bidding
process as a condition precedent for exercise of ROFR nor does
it prohibit the respondent from exercising ROFR without
participation in the bidding process. The order is, indeed,
silent in that behalf. But, that will be of no avail to the
respondent. For, such exemption ought to have been prayed
and expressly granted by the Court. In absence of such
express exemption, the respondent was obliged to comply with
the terms and conditions of the tender documents publicly
notified by the appellant as per its understanding of the order
of the High Court. Having failed to participate in the bidding
process in consonance with such notified terms and
conditions, the respondent lost the opportunity granted under
the order dated 23rd July, 2016 to match the lowest bid or to
33
exercise ROFR. Any other view would fall foul of the
fundamental policy of the Indian law and cannot be
countenanced.
20. It is not the case of the respondent that an express
exemption has been granted to the respondent, from
participating in the bidding process. In the matter of tender
process, there can be no tacit or implied exemption from
participating. In the first place, whether such direction can be
issued by the Arbitral Tribunal under Section 17 of the Act
itself is debatable. However, since the order dated 23rd July,
2016 has remained unchallenged, we do not wish to dilate on
that aspect. Indeed, the appellant accepted the order with a
sanguine hope that a proper tender process can be resorted to,
wherein the respondent would also participate, for awarding
the contract of unfinished and balance works of the subject
Project. For effectuating that order, tender documents were
issued by the appellant on 28th November, 2016 which, as
aforesaid, explicitly stipulated that the respondent was
expected to submit its bid within the specified time.
34
Admittedly, the fact that tender notice was issued, came to be
disclosed before the Arbitral Tribunal on 10th December, 2016.
Surprisingly, the respondent neither took any clue nor
bothered to follow up the tender documents which were placed
in public domain (as is done in respect of any other tender
process). Further, the respondent waited till the opening of
technical bids on 5th January, 2017 and financial bids on 29th
March, 2017 and rushed to the Arbitral Tribunal by way of an
application under Section 17 of the Act, only on 25th April,
2017 stating that on the previous day, it had come to its
notice that the appellant was likely to issue letter of intent to
the lowest bidder, without giving opportunity to the
respondent to match the lowest bid or exercise ROFR. To
oppose the said application, the appellant in the reply affidavit
had asserted that the respondent was fully aware about the
terms and conditions of the tender documents and yet chose
not to participate in the bidding process. The respondent did
not think it necessary to counter the said assertion by filing
any rejoinder thereto. Notwithstanding that, the Arbitral
Tribunal was impressed by the plea taken by the respondent
35
and allowed the application of the respondent vide order dated
24th May, 2017. The relevant extract of the said order has been
reproduced in paragraph 12 above. The Arbitral Tribunal was
more impressed by the fact that the respondent had completed
substantial works of the Project and it would be just and
proper to allow the respondent to complete the balance work.
The Arbitral Tribunal made no effort to ascertain as to whether
the order dated 23rd July, 2016 was a blanket and
unconditional order entitling the respondent to straightaway
exercise ROFR without participating in the bidding process.
The Arbitral Tribunal merely adverted to the objection of the
appellant and rejected the same on the finding that
involvement of a third party in the Project would create serious
problems. It took the view that giving option to the respondent
to match the lowest bid and to complete the balance work,
with a condition to periodically submit the progress report to
the Arbitral Tribunal for monitoring whether the balance work
was successfully completed to the satisfaction of the NHAI,
would be a proper and equitable arrangement. This approach
36
is not in conformity with the fundamental policy of Indian
law.
21. The approach of the High Court in the appeal preferred
by the appellant was no different. The relevant extract of the
High Court decision has been reproduced in paragraph 13
above. The High Court did not find any error, much less
manifest error, in the view taken by the Arbitral Tribunal.
Further, it can be gleaned from the observations of the High
Court in the impugned judgment that the High Court was
more eager to know as to what prejudice would be caused to
the appellant if the respondent had not participated in the
bidding process. This query of the High Court is begging the
question. For, that cannot be the primary basis to answer the
relief claimed by the respondent in the application under
Section 17 of the Act. An entity who stays away from the
bidding process and fails to comply with the express terms
and conditions of the tender documents cannot claim any
right to match the lowest bid or exercise ROFR. Only a
responsive bidder could do so. The High Court has overlooked
37
the fact that the appellant is a body corporate under the 1988
Act. It has to act in a just and fair manner in the matter of
allocation of contract albeit the balance and unfinished work
of the Project. No express exemption has been granted to the
respondent vide order of the Arbitral Tribunal dated 23rd July,
2016 – to exercise ROFR or match the lowest bid without
participating in the bidding process. The respondent had the
option to participate in the bidding process which was not
availed of for reasons best known to the respondent. The High
Court also overlooked the fact that the tender process was not
an empty formality and with the initiation of the same, third
parties, who participated in the bidding process, were likely to
be prejudiced by allowing the respondent to match the lowest
bid or exercise ROFR, without participating in the bidding
process despite the express stipulation in that behalf in the
tender documents. Suffice it to observe that the High Court
committed the same error as committed by the Arbitral
Tribunal in not examining the core issues for grant or
non-grant of the relief to the respondent, in conformity with
the fundamental policy of Indian law.
38
22. The argument of the respondent that the order dated 23rd
July, 2016 passed by the Arbitral Tribunal was based on
consent of the parties and was never challenged by the
appellant, does not take the matter any further. The
respondent on the one hand, contends that the said order was
based on consent of the parties and also in the same breath
contends that the respondent consented to the unilateral
conditions stipulated by the appellant, which the appellant
should not be allowed to resile as prayed by it. Be that as it
may, on a fair reading of the order dated 23rd July, 2016, it is
noticed that the same is the outcome of a contest and not
founded on any concession. In any case, the order makes no
express mention about granting of exemption to the
respondent from participating in the proposed bidding
process. The fact that the respondent has already invested a
substantial amount in the subject Project and has also
completed substantial work can be no basis to overlook the
fundamental policy of Indian law regarding the subject of
tender process and the rights and obligations of the parties
39
involved. We are also not impressed by the argument of the
respondent that the respondent was not expected to refuse to
match its own bid or that if it had participated in the bidding
process and exercised ROFR, then it would have resulted in
consequence of black listing and forfeiture of bid security
amount. The fact that the respondent would exercise ROFR
would mean that the bid given by the respondent was not L-1.
If it was not L-1, exercising ROFR would obviously neither
entail in forfeiture of the bid security nor would visit the
consequence of black listing. This plea is obviously an
argument of desperation and belated one to justify the failure
to participate in the bidding process.
23. The appellant invited our attention to the dictum in
VHCPL-ADCC Pingalai Infrastructure Pvt. Ltd., (supra). In
that case, the Court considered the question whether the
petitioner had preferential right to match the lowest bid
without pre-qualifying or participating in the bidding process.
In that case, Article 14.1(c) of the concession agreement
stipulated that the respondent No.1 could invite proposals
40
from eligible persons for capacity augmentation of the project
which required the petitioner to give an option to submit its
proposal. The Court after noticing the precedents on the
relevant aspects, went on to observe that if the concessionaire
chose not to submit its proposal, it did not have the right to
match the preferred offer as would be the case of the
respondent herein, in view of the express stipulation in the
tender documents requiring the respondent to participate in
the bidding process. The appellant has also placed reliance on
the decision in M/s. Raj West Power Limited, (supra). We
agree with the respondent that this decision does not lay down
any principle which may have any bearing on the case in
hand.
24. In view of the above, we have no hesitation in concluding
that the decision of the Arbitral Tribunal as confirmed by the
High Court, falls foul of the fundamental policy of Indian law
and cannot be countenanced.
25. Accordingly, the order passed by the Arbitral Tribunal
dated 24th May, 2017 as also the order dated 21st August,
41
2017 passed by the learned Single Judge of the High Court,
deserve to be quashed and set aside and resultantly, the
application preferred by the respondent under Section 17 of
the Act dated 24th April, 2017 ought to be dismissed. We
order accordingly.
26. The appeal is allowed in the above terms with no order
as to costs.
.………………………….CJI.
(Dipak Misra)
…………………………..….J.
 (A.M. Khanwilkar)
…………………………..….J.
 (Dr. D.Y. Chandrachud)
New Delhi;
July 13, 2018.

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.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 754 OF 2016
Tehseen S. Poonawalla ...Petitioner(s)
Versus
Union of India and others ...Respondent(s)
W I T H
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
J U D G M E N T
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
2
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 1 , “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

1 (2015) 3 SCC 467
3
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
4
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
5
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
6
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.
7
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
8
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
9
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
10
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.
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.”
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
11
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
12
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,
13
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 & others2.
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

2 2018 (5) SCALE 51
14
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
15
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
16
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 3 , 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
another4, 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 another5 would be
useful. In the said case, while dealing with the issue of

3 (2011) 7 SCC 547
4 (2014) 5 SCC 252
5 (2016) 9 SCC 682
17
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.
18
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
19
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
20
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."6
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

6 Benjamin Franklin, On Freedom of Speech and the Press, from the Pennsylvania
Gazette, November, 1737
21
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 7 ,
K. Jagannatha Shetty, J., although in a different context, referred
to the decision of the European Court of Human Rights in
Handyside v. United Kingdom8 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

7 (1989) 2 SCC 574
8 1976 EHRR 737, at p. 754
22
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 multiculturalistic
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
23
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
24
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 Delhi9, 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.

9 (1992) 1 SCC 558
25
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 others10.
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]

10 (1997) 4 SCC 606
26
30. In State of Karnataka and another v. Dr. Praveen Bhai
Thogadia11, 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

11 (2004) 4 SCC 684
27
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 Yadav12 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

12 (1976) 4 SCC 213
28
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 13 , after referring to the authorities in
Joginder Kumar v. State of U.P. and others 14 , Nilabati
Behera v. State of Orissa and others15 and State of M.P. v.
Shyamsunder Trivedi and others 16 , laid down certain
guidelines to be followed in cases of arrest and detention. In

13 (1997) 1 SCC 416
14 (1994) 4 SCC 260
15 (1993) 2 SCC 746
16 (1995) 4 SCC 262
29
Arnesh Kumar v. State of Bihar and another17, 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

17 (2014) 8 SCC 273
30
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
31
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.”
32
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 Riggins18
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

18 (C.C.N.D. Ala., 1904) 134 Fed. 404
33
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. Garcia19, 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

19 471 U.S. 261 (1985)
34
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 others20 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

20 (2014) 11 SCC 477
35
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:-
36
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
37
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,
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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
39
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
40
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
41
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
42
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
43
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 21 , 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

21 (2011) 6 SCC 405
44
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
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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.
 ……………………….....CJI.
 (Dipak Misra)
 ………………………….….J.
 (A.M. Khanwilkar)
 ……………………………..J.
 (Dr. D.Y. Chandrachud)
New Delhi;
July 17, 2018