TaxTMI 
TaxTMI 
2018 (7) TMI 1993
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....jan Mukherjee, S. Bhowmick, K. Enatoli Sema, Edward Belho, Amit Kumar Singh, K. Luikang Michael, Atul Jha, Sandeep Jha, Dharmendra Kumar Sinha, M. Shoeb Alam, Fauzia Shakil, Ujjwal Singh, Mojahid Karim Khan, Chanchal Kumar Ganguli, Bhupesh Narula, K.V. Jagdishvaran, G. Indira, Sangram S. Saron, Vikram Batra, Shree Pal Singh, Supriya Juneja, Ayush Anand, P.S. Sudheer, Santosh Kumar, Bharat Sood, Daryl Menezes, D. Bharathi Reddy, Abhishek, Anil Katiyar, Aadarsh Upadhyay, M. Yogesh Kanna, Sujatha Bagadhi, Guntur Prabhakar, Prerna Singh, Gopal Singh, Shreyas Jain, V.G. Pragasam, S. Prabhu Ramasubramanian, S. Manuraj, C.K. Sasi, Saurabh Mishra, Arjun Garg, Abhinav Mukherjee, Bihu Sharma, Purnima Krishna, Aruna Mathur, Anuradha Arputham, Advs. for Arputham Aruna & Co., Mrinmay Bhattmewara, Rohit Pandey, Sanjay Kumar Tyagi, Suhaan Mukherjee, Astha Sharma, Harsh Hiroo Gursahani, Amit Verma, Vishal Prasad, Ruchir Gupta, Santosh Rebello, Bhaskar Chhakara, Shuvodeep Roy, Sayooj Mohandas M., Naman Kamboj, Rituraj Biswas, Sanjeeb Panigrahi, Rashmi Singhania, Anil Grover, Noopur Singhal, Satish Kumar and Monika Gusain, Advs. For the Respondent : None JUDGMENT Dipak Misra, C.J.I. 1. L....
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....l the writ petitions have commonality, although the expression of language as well as the width of the prayer is slightly different. What really emanates as the pivotal issue requiring our contemplated consideration is the duty of this Court under the constitutional framework to deal with the primary grievance that pertains to cow vigilantism and other incidents of lynching or, if we may say so, targeted violence and commission of offences affecting the human body and against private and public property by mobs under the garb of self-assumed and self-appointed protectors of law. 3. We shall state the facts in brief, for there are asseverations with regard to numerous incidents of lynching and mob violence which need not be specifically stated since we are going to issue certain directions covering the arena of preventive, remedial and punitive measures. We shall note the suggestions given by Mr. Sanjay R. Hegde, learned senior Counsel in one of the writ petitions. We may further state that we shall refer to the facts in Writ Petition (Civil) No. 754 of 2016. 4. The Petitioner, a social activist, has preferred this writ petition Under Article 32 of the Constitution for command....
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....ist the Court as to how the activities of the vigilantes can be absolutely curtailed and suggest ways and methods to work out the same. 6. Be it noted, when Writ Petition (Civil) No. 732 of 2017 was listed along with the main writ petition, i.e., Writ Petition (Civil) No. 754 of 2016, on 6th September, 2017, the Court, while issuing notice, noted the statement made by the learned Solicitor General on the previous occasion and, thereafter, noted the submissions advanced by Ms. Indira Jaising, learned senior Counsel appearing for the Petitioner and Mr. Tushar Mehta, learned Additional Solicitor General appearing for the Union of India. We think it appropriate to reproduce the said order as it contains certain interim directions: After referring to the same, it is urged by her that the law and order enforcing agencies of the States have great responsibility not only to register the First Information Report (FIR) after the incident takes place but also see to it that groups or a class of people do not take the law into their hands and indulge in vigilantism. Additionally, it is her submission that Under Article 256 of the Constitution of India, it is the obligation of the C....
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....propriate to refer to the relevant paragraphs of the said communication: I have been directed to say that while ensuring the compliance of the aforesaid orders of the Hon'ble Supreme Court of India, an effective control must be maintained over the Criminal Activities of the Vigilantes. Besides it the Designated Nodal Officer of each district shall take effective and prompt measures to curve the Criminal Activities of such Vigilantes. It must be ensured that such antisocial elements are not permitted to involve themselves in any of such criminal activities. 3. In the monthly crime meetings, this issue must be included as one of the issue to be closely monitored. It must be regularly reviewed. Besides it, the Local Intelligence Unit must be deputed to identify such Vigilante and an strict watch be maintained on their activities. 4. It is further directed that while patrolling on the National Highways and other roads, the Local Police and dial 100 be directed to ensure that no Vigilante takes over Law and Order in its hands and commits a Criminal Act. Prompt enquiries be made against the unlawful activities of such antisocial elements and necessary legal....
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.... and Police Districts in the State of Gujarat. Area Nodal Officer Police Commissionerate Concerned Commissioner of Police Police District Concerned Superintendent of Police Jurisdiction of Western Railway, Ahmedabad/Varodara Concerned Superintendent of Police, Western Railway 2. With a view to ensure effective legal proceedings in all offences that may get registered in connection with the illegal activities under consideration, the Director General of Police, CID (Crime and Railways), Gujarat State, Gandhinagar shall undertake quarterly review of all such cases. 10. A communication has been sent by the Inspector General of Police, State Traffic Branch from the office of the Director General to all the Police Commissioners, Range Heads and Police Superintendents (including Western Railway, Ahmedabad). The relevant part of the said communication reads thus: While such incidents take place in certain specific places, specific roads and particular areas, such spots on National Highway, State Highway and other roads be identified and mapped. Further, as is known, there is a specific pattern of violent incidents taking place and such wo....
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....at apart, submits Mr. Hegde, the supremacy of law has to be recognized and if a law prescribes a punishment for a crime, it has the mechanism provided under the law to do so. The procedural and the substantial safeguards are required to be followed. It is urged by Mr. Hegde, with all the emphasis at his command, that lynching or any kind of mob violence has to be curbed and crippled by the executive and no excuse can ever be tolerated. Stress is laid on prevention, remedial and punitive measures. In this regard, he has placed reliance on a recent judgment rendered in Shakti Vahini v. Union of India and Ors. 2018 (5) SCALE 51. 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 suspi....
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....uitted as per the adjudication by the judiciary on the basis of the evidence brought on record and the application of legal principles. There cannot be an investigation, trial and punishment of any nature on the streets. The process of adjudication takes place within the hallowed precincts of the courts of justice and not on the streets. No one has the right to become the guardian of law claiming that he has to protect the law by any means. It is the duty of the States, as has been stated in Nandini Sundar and Ors. v. State of Chhattisgarh (2011) 7 SCC 547, to strive, incessantly and consistently, to promote fraternity amongst all citizens so that the dignity of every citizen is protected, nourished and promoted. That apart, it is the responsibility of the States to prevent untoward incidents and to prevent crime. 16. In Mohd. Haroon and Ors. v. Union of India and Anr. (2014) 5 SCC 252, it has been clearly held that it is the responsibility of the State Administration in association with the intelligence agencies of both the State and the Centre to prevent recurrence of communal violence in any part of the State. If any officer responsible for maintaining law and order is found ....
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....d in the bud; lest it would lead to rise of anarchy and lawlessness which would plague and corrode the nation like an epidemic. The tumultuous dark clouds of vigilantism have the effect of shrouding the glorious ways of democracy and justice leading to tragic breakdown of the law and transgressing all forms of civility and humanity. Unless these incidents are controlled, the day is not far when such monstrosity in the name of self-professed morality is likely to assume the shape of a huge cataclysm. It is in direct violation of the quintessential spirit of the Rule of law and of the exalted faiths of tolerance and humanity. 19. Mob vigilantism and mob violence have to be prevented by the governments by taking strict action and by the vigil society who ought to report such incidents to the state machinery and the police instead of taking the law into their own hands. Rising intolerance and growing polarisation expressed through spate of incidents of mob violence cannot be permitted to become the normal way of life or the normal state of law and order in the country. Good governance and nation building require sustenance of law and order which is intricately linked to the preserva....
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....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 Ors. (1989) 2 SCC 574, K. Jagannatha Shetty, J., although in a different context, referred to the decision of the European Court of Human Rights in Handyside v. United Kingdom 1976 EHRR 737, at p. 754 wherein it has been held thus in the context of Article 10 of the European Convention on Human Rights (ECHR): The court's supervisory functions oblige it to pay the utmost attention to the principles characterizing a 'democratic society'. Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to Article 10(2), it is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no 'democratic society'. ....
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.... and races, follow different religions and use multiple languages, ought to be discussed and accentuated. It is requisite to state that our country must sustain, exalt and celebrate the feeling of solidarity and harmony so that the spirit of oneness is entrenched in the collective character. Sans such harmony and understanding, we may unwittingly pave the path of disaster. 27. In St. Stephen's College v. University of Delhi (1992) 1 SCC 558, while emphasizing on the significance of 'Unity in Diversity', the Court has observed that the aim of our Constitution is unity in diversity and to impede any fissiparous tendencies for enriching the unity amongst Indians by assimilating the diversities. The meaning of diversity in its connotative expanse of the term would include geographical, religious, linguistic, racial and cultural differences. It is absolutely necessary to underscore that India represents a social, religious and cultural diversity. 28. 'Unity' in the context of a nation means unity amongst the fellow citizens. It implies integration of the citizens whereby the citizens embrace a feeling of We' with a sense of bonding with fellow citizens whic....
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....ll 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. 31. Unity in Diversity must be recognized as the most potent weapon in India's armoury which binds different and varied kinds of people in the solemn thread of humanity. This diversity is the strength of our nation and for realizing this strength, it is sine qua non that we sustain it and shun schismatic tendencies. It has to be remembered that the unique feature of 'Unity in Diversity' inculcates in the citizens the virtue of respecting the opinions and choices of others. Such respect imbibes the feeling of acceptance of plurality and elevates the idea of tolerance by promoting social cohesion and infusing a sense of fraternity and comity. 32. In this context, the observations in State of Uttar Pradesh v. Lalai Singh Yadav (1976) 4 SCC 213 are apt: The State, in India, is secular and does not take sides with one religion or other prevalen....
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....h Article 21 of the Constitution. Thus, the rights of the citizens cannot be destroyed in an unlawful manner. As the investigating agency has to show fidelity to the statutory safeguards, similarly, every citizen is required to express loyalty to law and the legal procedure. No one, and we repeat no one, is entitled to take the law into his own hands and annihilate anything that the majesty of law protects. When the vigilantes involve themselves in lynching or any kind of brutality, they, in fact, put the requisite accountability of a citizen to law on the ventilator. That cannot be countenanced. Such core groups cannot be allowed to act as they please. They cannot be permitted to indulge in freezing the peace of life on the basis of their contrived notions. They are no one to punish a person by ascribing any justification. The stand and stance put forth in the interlocutory applications filed by the impleaded parties intend to convey certain contraventions of the provisions of statutory law but the prescription of punishment does not empower any one to authorize himself to behave as the protector of law and impose punishment as per his choice and fancy. That is the role and duty o....
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....) 134 Fed. 404 was a case involving the lynching of a Negro citizen who had been imprisoned on the charge of murder. While he was imprisoned in jail, the mob removed him and lynched him by hanging. Thereafter, certain mobsters involved in the said hanging were indicted. A petition of habeas corpus was filed seeking the release of the said mobsters on the ground that there was no law in the United States which legalized the indictment of the said mobsters. While disposing of the said habeas corpus petition and upholding the indictment, Thomas Goode Jones, J. made the following relevant observations: When a private individual takes a person charged with crime from the custody of the state authorities to prevent the state from affording him due process of law, and puts him to death to punish the crime and to prevent the enjoyment of such right, it is violent usurpation and exercise, in the particular case, of the very function which the Constitution of the United States itself, under this Clause [the 14th Amendment] directs the state to perform in the interest of the citizen. Such lawlessness differs from ordinary kidnapping and murder, in that dominant intent and actual resu....
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....down as guidelines by this Court. Ms. Indira Jaising, learned senior Counsel, has placed reliance on Pravasi Bhalai Sangathan v. Union of India and Ors. (2014) 11 SCC 477 to submit that these guidelines do come Under Sections 153 and 295A Indian Penal Code and this Court has elaborately dealt with the same. 39. There is no dispute that the act of lynching is unlawful but we are not concerned with any specific case since it has become a sweeping phenomenon with a far-reaching impact. It is our constitutional duty to take a call to protect lives and human rights. There cannot be a right higher than the right to live with dignity and further to be treated with humanness that the law provides. What the law provides may be taken away by lawful means; that is the fundamental concept of law. No one is entitled to shake the said foundation. No citizen can assault the human dignity of another, for such an action would comatose the majesty of law. In a civilized society, it is the fear of law that prevents crimes. Commencing from the legal space of democratic Athens till the legal system of modern societies today, the law makers try to prevent crimes and make the people aware of the same ....
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.... 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 Code of Criminal Procedure, 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 Genera....
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....on 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 Code of Criminal Procedure within one month from the date of this judgment. In the said scheme for computation of compensation, the State Governments shall give due regard to the nature of bodily injury, psychological injury and loss of earnings including loss of opportunities of employment and education and expenses incurred on account of legal and medical expenses. The said compensation scheme must also have a provision for interim relief to be paid to the victim(s) or to the next of kin of the deceased within a period of thirty days of the incident of mob violence/lynching. (v) The cases of lynching and mob violence shall be specifically tried by designated court/Fast Track Courts earmarked for that purpose in each district. Such courts shall hold trial of the case on a day to day basis. The trial shall preferably be concluded within si....
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....am Servai v. State of Tamil Nadu (2011) 6 SCC 405, the States are directed to take disciplinary action against the concerned officials if it is found that (i) such official(s) did not prevent the incident, despite having prior knowledge of it, or (ii) where the incident has already occurred, such official(s) did not promptly apprehend and institute criminal proceedings against the culprits. 41. The measures that are directed to be taken have to be carried out within four weeks by the Central and the State Governments. Reports of compliance be filed within the said period before the Registry of this Court. 42. We may emphatically note that it is axiomatic that it is the duty of the State to ensure that the machinery of law and order functions efficiently and effectively in maintaining peace so as to preserve our quintessentially secular ethos and pluralistic social fabric in a democratic set-up governed by Rule of law. In times of chaos and anarchy, the State has to act positively and responsibly to safeguard and secure the constitutional promises to its citizens. The horrendous acts of mobocracy cannot be permitted to inundate the law of the land. Earnest action and concrete ....