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
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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
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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,
38
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
45
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
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,
38
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
45
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
