This article is written by Saswata Tewari and further updated by Pujari Dharani. This article provides a detailed case analysis of Tehseen S. Poonawalla vs. Union of India (2018), including the Supreme Court’s observations on cow vigilantism, intolerance and lynching activities and also the court’s guidelines to the government, pertaining to the incidents of mob violence. This article further explains new provisions on mob lynching inserted in the Bharatiya Nyaya Sanhitha, 2023.

Table of Contents

Introduction

According to Reuters, a minimum of 44 people died due to cow vigilante attacks in India between May 2015 and December 2018. Mob lynching cases are rising where the self-proclaimed cow vigilante groups in the name of cow protection, lynches innocent individuals and in most of these lynching cases, it has been found that the accusations which led to the lynching of the victims had no truth in it and it was all because of hate propaganda and fake news. 

We know that the law is supreme in a civilised society, and its purpose is to guide the people in conducting themselves. The law also confers certain rights to people. The law, thus, provides both rights and duties to the people of a society. The onus of the protection of the former is upon the State, and the obligation not to break the duties imposed on oneself is cast upon the subjects of such law. No individual or any group should take laws into their own hands and deal with a person according to their own will in the name of enforcement of the law. This questions the existence of our prevailing law system in the country, and such incidents should not be tolerated in a civilised society that respects the fundamental principles of the law.

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Huge protests were held against such activities of lynching and people from all over the country raised their voices condemning mob lynching activities and the cow vigilante groups behind these incidents. Initiatives were taken by a lot of individuals to create cognisance among people about such incidents and to stop the misuse of social media to spread rumours by planting fake stories and news which eventually brought about such activities. 

Tehseen Poonawalla, a social activist, filed a writ petition in the Supreme Court questioning the validity of the animal protection laws in 6 states which had provided loopholes to these cow vigilante groups to take the law into their hands. The Supreme Court, in the case of Tehseen S. Poonawalla vs. Union of India & Ors. (2018), made important observations on various aspects of this case such as the obligation of the state to control such criminal activities, the negative effects of vigilantism and lynching, and many more, and also gave directions to the central and state governments to take the specified measures immediately.

Details of Tehseen S. Poonawalla vs. Union of India & Ors. (2018) 

  1. Name of the case – Tehseen S. Poonawalla vs. Union of India & Ors. (2018)
  2. Date of the judgement – July 17th 2018
  3. Parties of the case –
    1. Petitioner: Tehseen S. Poonawalla
    2. Respondent: Union of India & Ors. 
  4. Equivalent citations –  AIR 2018 SC 3354, (2018) 9 SCC 501, [2018] 9 SCR 291, 2018 4 AWC 4307 SC, 2018 INSC 617, 2018 (9) SCALE 4, 2019 (3) SCJ 117.
  5. Type of the case – Writ petition
  6. Court – The Hon’ble Supreme Court of India
  7. Provisions and Statutes involved – Sections 153A and 295A of the Indian Penal Code, 1860, and Sections 129 and 357A of the Code of Criminal Procedure, 1973
  8. Bench – The then Chief Justice of India Dipak Misra, Justice A.M. Khanwilkar and Justice Dr. D.Y. Chandrachud.

Facts of the case

  • The cow protection laws of 6 states- Gujarat, Jharkhand, Karnataka, Maharashtra, Rajasthan, and Uttar Pradesh, were challenged by the petitioner. A few provisions which were challenged were given below.
  • The petitioner sought the Hon’ble Supreme Court of India, under this writ petition, to issue a writ of mandamus by commanding the respondent, i.e., the State, to do the following measures;
    • To take necessary and instant actions against all those cow protection groups who were involved in violence; 
    • To remove any violent content posted on social media by the said groups; and
    • To declare a few statutory provisions, which absolve a few cow vigilante activities from legal liability, as constitutionally invalid.
  • In 2017, the Supreme Court ordered the state governments in India to appoint a senior police officer as a ‘designated Nodal Officer’ in every district in their respective state. The duties of such Nodal Officers are to ensure that the vigilante groups do not commit any violent activities by taking the law into their own hands for the sake of cow protection and taking immediate and effective steps to prevent such anti-social elements in their jurisdiction, including highways. In spite of taking such preventive measures, if such violent activities have occurred, the said Nodal Officer must take prompt police action by filing a First Information Report (hereinafter mentioned as FIR) against such offenders.

Provisions involved

Article 48 of the Indian Constitution

Article 48 of the Constitution of India provides a directive principle for the State to keep in mind while formulating policies. This constitutional provision says that the State should strive hard to develop the agriculture and animal husbandry sector as per the latest technological advancement, as well as protect and improve the animal breeds. In specific, the Constitution also directs the State to ban the slaughter of cows and calves.

Section 153A of the Indian Penal Code

Section 153A of the Indian Penal Code, 1860 (hereinafter mentioned as IPC), which has now been replaced with Section 196 of the Bharatiya Nyay Sanhita, 2023 (with effect from 1st July 2024) (hereinafter mentioned as BNS), stringently punishes the following acts.

  • An act that promotes enmity, disharmony, or feelings of ill will between two groups or classes on the following grounds.
    • Religion;
    • Race;
    • Place of birth;
    • Residence;
    • Language;
    • Case;
    • Community; or
    • Any other ground
  • An act which disturbs the maintenance of harmony between two different regional groups.
  • If the above acts are committed in a place of worship, there will be an enhanced punishment.

To know more about Section 153A of IPC, click here.

Section 295A of the Indian Penal Code

Section 295A of the IPC, which was replaced with Section 299 of the BNS, stringently punishes the offence of a malicious act intended to outrage the religious feelings of any class. The essential ingredients of this offence are given below.

  1. The accused person has made a statement or representation by speaking, writing, gestures, or visible representation;
  2. Such a statement is made with the intention to outrage the religious feelings of any class of Indian citizen; and
  3. Such intention must be deliberate and malicious.

Section 129 of the Code of Criminal Procedure

Section 129 of the Code of Criminal Procedure, 1973 (hereinafter mentioned as CrPC), which has now been replaced with Section 148 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (with effect from 1st July 2024) (hereinafter mentioned as BNSS), empowers certain authorities, namely the executive magistrate or officer in charge of a police station, to disperse the unlawful assembly. If such an assembly does not abide by the warning given by such authorities, the said authorities can use force to disperse them and can also arrest and confine them, if needed.

Section 357A of the Code of Criminal Procedure

Section 357A of the CrPC, which was replaced with Section 396 of the BNSS, deals with the victim compensation scheme. Every State government shall draft such a scheme to provide relief to the victim or his/her dependants who sustained injury due to the offence. By this provision, any competent court may fix the amount of the compensation which will be provided by the legal service authority of that district or state under the said scheme.

Issues raised in Tehseen S. Poonawalla vs. Union of India & Ors. (2018)

  • Can immediate and necessary actions be taken by the states and Centre against the cow protection groups for indulging in violence?
  • Should the court order the Centre and states to issue orders to the television and social media service providers to remove all the violent content posted on their respective platforms by these cow protection groups?

Arguments advanced by both parties in Tehseen S. Poonawalla vs. Union of India & Ors. (2018)

On behalf of the petitioner

  • It was argued by Mr. Sanjay R. Hedge that no person or cow protection group can involve himself or themselves in the activity of lynching a person on the mere perception that a crime has been committed and that lynching or any kind of mob violence has to be suppressed by the executive. The law and its supremacy must prevail. The law provides for the substantive provisions, where it designates a few acts as crimes, defines them and prescribes punishment, and procedural provisions, which have to be followed and no one should take laws in their hand. The counsel strongly prayed to the Court that mob lynching activities have to be prevented by law enforcement agencies and that any kind of defence should be tolerated by the courts. By relying on the case of Shakti Vahini vs. Union of India and Ors. (2018), the counsel emphasised the need for preventive, remedial and punitive measures to curb mob violence in India.
  • It was argued by Ms. Indira Jaising that it is the duty of the law enforcement authorities of the states concerned to not only register an FIR on receiving information about such commission of mob lynching by the victims’ family members but also be quick in taking immediate measures to stop such violent activities and if these activities of lynching are not stopped, individuals will indulge in vigilantism, start taking the law into their own and enforce the law according to their judgement. Ms. Indira Jaising also noted that mob lynching cases are constantly increasing in the states of Delhi, Gujarat, Haryana, Jammu and Kashmir, Karnataka, Madhya Pradesh, Maharashtra, Rajasthan and Uttar Pradesh due to which minorities belonging to certain communities are prone to be targeted. Sometimes, they become victims due to the suspicion that is raised from fake news. It was further argued that the Central Government has the authority to intervene in the practice of powers by the States and issue commands, as conferred by Articles 256 and 257 of the Indian Constitution, in order to uphold the concept of cooperative federalism. She also highlighted the need for patrolling on national highways as one of the preventive measures to stop such violent activities by potential offenders.

On behalf of the respondent

  • It was argued by Ms. Hemantika Wahi, standing counsel for the Gujarat state, that in the state of Gujarat, all those persons who were involved in the said lynching activities have been arrested and also were charged for relevant offences and necessary action is taken against the police personnel. Similarly, Mr. Tapesh Kumar Singh, counsel for the Jharkhand state, stated that in the state of Jharkhand, legal actions have been taken against and criminal cases have been filed against the persons who had been involved in mob lynching cases.
  • Mr. Ranjit Kumar, Solicitor General, appearing for the Union of India, said that these incidents of lynching relate to the states concerned, where such incidents had taken place, as law and order is a state subject and that the Union of India does not support such lynching activities by the vigilante groups.
  • Mr. Tushar Mehta, Additional Solicitor General appearing for the states, namely Haryana,  Rajasthan, Gujarat and Maharashtra, made a submission to the Hon’ble Court that these states will select a senior police officer from their respective police departments and designate as the Nodal Officer in each district, who will be under a duty to ensure that these vigilante groups will never take the law into their hands. If they disobey the rules and enforce the law as if they are the enforcing agencies, the said Nodal Officer shall take action against such vigilantes and promptly file cases against them under relevant penal provisions.

Judgement in Tehseen S. Poonawalla vs. Union of India & Ors. (2018)

The bench of the Supreme Court comprising Chief Justice Dipak Misra, Justice A.M. Khanwilkar, and Justice Dr. D.Y. Chandrachud gave the judgement, in this case, addressing all the issues with enormous sensitivity and issued certain guidelines covering the area of preventive, remedial, and punitive measures to suppress the activities of lynching as the situation has arisen in the country to take prompt action.

The Supreme Court observed the following while dealing with such sensitive issues in the present case. 

  1. The State, including the law enforcement agencies, have a greater responsibility to look after the proper administration of law and no private individual shall be allowed to take the law in their hands or to behave in a fashion that they are the law themselves for the sake of protecting the law or punishing the criminals.
  2. Any citizen of this country has a right to approach the police station freely and inform the authorities there regarding the commission of any lynching or mob violence activities, but he has no right to take the place of adjudicating authorities and become the guardian of the law.
  3. The accused, who has allegations of commission of such criminal acts, must be entitled to a fair and speedy trial in a criminal court as per the constitutional and statutory rights he has.
  4. The judiciary, i.e., the competent criminal court, is the rightful authority to adjudicate such matters and decide upon the issues of whether such an offence is committed and what shall be the appropriate punishment after hearing both sides of arguments and examining the evidence placed before it.

Different guidelines put forth by the Supreme Court in the case of Tehseen S. Poonawalla vs. Union of India & Ors. (2018)

The duty of the State to promote fraternity

The Supreme Court, in the present case, by referring to precedents set by the Supreme Court emphasised the role and responsibility of the State in controlling communal violence and related criminal activities. In this regard, the observations of the Court are given below.

  • Besides the proper administration of law by the State, the Court also mentioned the Supreme Court’s observations in the case of Nandini Sundar and Ors. vs. State of Chhattisgarh (2011) that the State is under the duty to promote fraternity, i.e., brotherhood, among all citizens of our country, as provided in the Preamble of the Constitution of India. The Court also mentioned that the State’s duty is to take the help of intelligence bodies of both state and centre to stop communal violence from happening again and, in this process, if any public servant is found negligent, they will punished as per law accordingly.
  • Additionally, the Court cited Archbishop Raphael Cheenath S.V.D. vs. State of Orissa and Anr. (2016), which dealt with the issue of communal violence, the Supreme Court held that the State Government must investigate and find out the root cause for the communal disharmony within their state and accordingly take steps to strengthen the brotherhood by adopting peace-building measures in the society among its citizens. Further, the Court also suggested having a sophisticated and effective police infrastructure so as to help the government in controlling communal violence and its reoccurrence.

The duty of the State to stop vigilantism and lynching activities

The Supreme Court, in the present case, held that the state governments have the primary duty to stop vigilantism, whether cow vigilantism or any other kind, irrespective of its cause and purpose. It does not matter if the purpose of vigilantism is good as the motive is not considered in criminal law. Moreover, taking the law into one’s own hands is something which is not acceptable and the state will interfere and punish them accordingly. Stating this, the Court have following guidelines to the State.

  • The state is under a duty to protect the people of this country from such offenders without considering race, caste, class or religion because crime and victims have no class or community and, if they start taking the law into their own hands, society eventually turns violent and chaotic. It will also result in violation of constitutional values and undermining the institutional framework of the country. 
  • The Court firmly noted, when the issue of lack of cattle protection, incidents of cattle smuggling and practice of cruelty towards animals were brought to the notice of the Court, that it is the competent authorities like law enforcement authorities and courts that have the power to take steps, to find out the criminals, initiate criminal proceedings against him and punish him upon conviction. The Court also observed that, in a country where the rule of law is prevailing, no person shall presume himself to be the competent authority, take extra-judicial steps and be a punisher to such accused people.
  • Furthermore, the other thing which threatens the rule of law and constitutional values of that country is lynching activities and hate crimes, as highlighted by the Court. In this regard, the Court observed that “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… 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.”

The duty of citizens to protect the constitutional values of tolerance, unity and harmony

The Supreme Court also observed that the freedom of speech and expression, one of the important freedoms in a free and democratic society, is grossly affected by such mob violence and hate crimes. In this regard, the Court highlighted the importance of virtues like pluralism, tolerance and unity. The Court noted that pluralism in thought and practice will lead to unity among the people. Here, it is also pertinent to note that the concept of “unity in diversity” is embedded in the Preamble of our constitution. Further, the Court while opining about the aforesaid principle relied on Emile Durkheim’s view, a French sociologist, stating that, if unity among fellow citizens in a society is based upon diversity and heterogeneity, such society can be termed as an organic solidarity. By this, India, where there are geographical, religious, linguistic and cultural variations, can also be named as a complete organic social solidarity. The Supreme Court referred to the case of Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi & Ors. vs. State of Uttar Pradesh & Ors. (1997), where the Court held that religious tolerance, which makes the people in society respect each other’s religious faith and belief, is an important element of the concept of “unity in diversity”. Also, in State of Karnataka & Anr. vs. Dr. Praveen Bhai Thogadia (2004), the Court decided that adopting and embracing the attitude of unity in diversity is the best way of life in the world’s most heterogeneous society like ours and going against the communal harmony would destroy the constitutional values. In the Praveen Bhai case, the Court also observed that “It is inconceivable that there can be social well being without communal harmony, love for each other and hatred for none.”

Whereas, intolerance will make society imbalanced and negatively affect others’ rights, especially free speech. To prevent the same, the Court suggested adopting a tolerant attitude and embracing diversity by stating “The State has the primary responsibility to foster a secular, pluralistic and multi-culturalistic social order so as to allow free play of ideas and beliefs and coexistence of mutually contradictory perspectives.”

Compliance with fair laws and procedures for arrest, investigations and conviction

The laws, which provide a procedure for the arrest, investigation and conviction, are already in place such as the CrPC, which is now replaced with the Bharatiya Nagarik Suraksha Sanhita, 2023 and will take effect from July 1st, 2024. In case of a lack of proper procedure, the judiciary took an active role in giving guidelines to be followed by the law-enforcing governmental authorities. In this regard, the Supreme Court cited a few cases where the judiciary procedural guidelines were to be abided by in case of arrest and detention, namely D.K. Basu vs. State of West Bengal (1997), Arnesh Kumar vs. State of Bihar & Anr. (2014), among other cases. Not only do the governmental authorities have to follow the guidelines and act in such a way as not to violate the rights of the citizens, but also the citizens must respect the existing laws and procedures and be loyal to the same. If there is any commission of offence, the authorities will intervene and take necessary actions and no person, in any case, should step into the shoes of the authorities and take action on their behalf. The vigilante groups, upon knowing any criminal activity, have the right to immediately inform the authorities nearby, who will take prompt actions as per law accordingly.

Creation of penal provisions for the offence of lynching by the legislature

The Supreme Court, with an object to instil fear in the minds of potential lynchers, recommended the Parliament make new penal provisions for the offence of lynching, besides the existing penal provisions, and fix suitable punishment. The Court also observed that “There can be no trace of doubt that fear of law and veneration for the command of law constitute the foundation of a civilized society.”

American cases referred by the Supreme Court in the case of Tehseen S. Poonawalla vs. Union of India & Ors. (2018)

In American society too, there was a time when lynching was widely being committed by lynchers and courts in the United States of America (USA) took effective steps to prevent the same. Some prominent relevant cases were referred by the Supreme Court in the present case, which are given below.

Riggins vs. United States (1904)

In this case, an accused was convicted for committing the murder of a negro citizen and was undergoing imprisonment period, during which he was attacked by a mob, who took him away from custody and killed him. A few people involved in such mob attacks were charged for which a habeas corpus petition was filed. Justice Thomas Goode Jones, while disposing of this petition, stated that this is not the case of normal kidnapping and murder, it is more than that. The mob, in this case, unauthorisedly performed the duties of punishing him, which is a sovereign function, and violated the rights of the accused as well as the purpose of the Constitution of the U.S.A.

Wilson vs. Garcia (1985)

In this case, the US Supreme Court referred to the debates in Congress on the passage of the Civil Rights Act, 1871. The Supreme Court of India took a relevant passage from such debates. That passage conveys that the authorities in America are not taking any sufficient steps in spite of incidents of murders, lynching and whipping increasing. It further states the sad state of affairs that the offenders are walking free while the law-abiding citizens search the public documents to prove the offence by producing evidence.

Measures laid down by the Supreme Court in Tehseen S. Poonawalla vs. Union of India & Ors. (2018)

The Supreme Court referred to the suggestions made by the learned Senior Counsel Sanjay R. Hedge in which the petitioner wanted the court to prescribe immediate and necessary measures against the self-proclaimed cow vigilante groups who were indulging in violence and mob lynching in the name of cow protection. The Court noted Sanjay R. Hedge’s submission and stated that no person or vigilante group can involve themselves in an act of violence on the underlying perception of an idea that a crime has been committed and any kind of lynching or mob violence has to be restrained and disabled by the Central Government.

The Supreme Court after listening to all the arguments came up with some guidelines to curb the rising cases of mob lynching. The guidelines were made under three categories i.e. preventive, remedial, and punitive measures. It was believed that when the preventive measures faced failure, the crimes would be controlled by the remedial and punitive measures.

The Supreme Court also mandated the Central and State governments to start implementing the below measures and compliance reports shall be submitted to the registry of the Supreme Court.

Preventive measures

The State’s primary duty is to ensure that the crime does not occur in the first place. For this duty to be fulfilled, the Court recommended the following preventive measures to ensure that the law and order in every district are maintained and peace and harmony prevail among the citizens of this country.

  • The state governments would appoint a senior police officer, not below the rank of Deputy Superintendent of Police (DSP) as a Nodal Officer in each district. The Nodal Officer shall be helped by one of the DSP rank officers in the district to take action in order to stop the incidents of mob violence and lynching. A special task force shall be made to get intelligence reports about such individuals who are likely to indulge in such crimes of violence or who are engaged in spreading hate speeches, provocative statements, and fake news.
  • Districts, subdivisions, and villages will be pinpointed by the state governments where cases of mob lynching have been reported recently i.e., in the last five years. This task must be done within the period of three weeks from the date of this judgement.
  • It will be the duty of the Nodal Officer to make sure that the officer-in-charge of the police station of the pinpointed areas is always a little extra cautious if any case of mob lynching within their jurisdiction comes to their notice. In this regard, the secretary of the respective home departments of the state concerned will issue guidelines and directions for the proper functioning and administration.
  • Regular meetings, i.e., at least once every month, were to be held by the Nodal Officer with intelligence bodies and all Station House Officers (SHO) of that particular district to identify any chances of vigilantism, mob lynching and violence in their jurisdiction and take necessary steps to stop any spread of violent content, which incites the commission of the said offences, on different social media platforms. Besides this, the Nodal Officer is also under a duty to reduce the communal disharmony in that district.
  • Review meetings once in six months must be conducted by either the Director General of Police (DGP) or the secretary of the respective home department of that state with all the Nodal Officers of every district as well as the heads or chairmen of the State Police Intelligence body. If there is any issue of coordination of two or more districts, the Nodal Officer must bring notice about such issue in the meeting.
  • Police officers should use their power under Section 129 of the CrPC to disperse while dealing with cases of mob lynching and under circumstances where he or she thinks that a similar crime may be committed in the name of vigilantism.
  • The Home Ministry of the Government of India should work with the state governments to train the officers concerned and to provide other necessary infrastructure and facilities.
  • If there are any past incidents of mob lynching and violence or if there is any information given by the intelligence authorities, the Director General of Police directs the Superintendents of Police to do frequent patrolling in the suspective areas and highways. The object behind the patrolling is to instil fear in the minds of the potential lynchers or criminals so that they will stop themselves from implementing their conspiracies.
  • A warning should be given by the union and state governments on radio, television and other media platforms including the official website of the law enforcement agencies that lynching and mob violence will invite serious legal consequences.
  • Steps should be taken by the union and state governments to curb and stop the dissemination of violent posts on social media platforms which tend to provoke mob violence and lynching.
  • Police are to register FIR under Section 153A of the IPC and/or relevant provisions of law against individuals who spread hateful messages on social media platforms which is likely to provoke mob violence and lynching cases
  • The state government shall be directed by the advisories of the union government which shall show the seriousness of the situation and the actions to be taken by the state government.

Remedial measures

In spite of adopting the previously discussed preventive measures by the governmental authorities, still, if such incidents of mob lynching and violence occur, the Court suggested the following remedial measures to be followed by the authorities.

  • If any case of mob lynching comes to the notice of the local police station, which has the jurisdiction, an FIR should be immediately lodged under appropriate penal provisions without any delay.
  • The Station House Officer of that police station, where the FIR is lodged, shall inform about the same to the Nodal Officer in the district, who will take steps to protect the family members of the victim from further assaults and criminal force.
  • The Nodal Officer shall personally monitor the investigation in such cases to ensure an effective investigation, including the arrest of the accused persons, and that the charge sheet is filed within the statutorily specified period.
  • A compensation scheme shall be prepared by the state government in light of the provisions of Section 357A of the CrPC within one month from the date of judgement to help the families of the victims of the offence of mob lynching or violence. In the said scheme, there must be a provision providing interim monetary relief to the victims or to the family members of the victim within 30 days from such occurrence of such violence. The amount of compensation varies from victim to victim based upon factors like the nature of the injury, whether bodily or psychological and financial loss, including loss of educational and employment opportunities and legal and medical expenses.
  • Fast-track courts should be established in every district specifically adjudicating the cases of lynching and mob violence to ensure speedy trials. A six-month time period from the date of cognizance of the said offence is preferably specified by the court for disposal of the case so that the designated courts function on a day-to-day basis and do not cause any delays in concluding the matters. This rule shall apply to both new matters as well as the pending matters. The duty of assignment of cases to competent courts is imposed upon the District Judge.
  • The trial courts should award the maximum sentence as prescribed in the penal provisions to the convict for the offence of mob lynching or violence in order to set stern examples so that it instils the potential offenders from attempting their conspiracies.
  • Appropriate steps may be taken by the designated courts that are dealing with mob lynching or violence cases to conceal the identity of a witness, who is at threat or risk from the offenders or persons at the behest of such offenders. Even the address of the witness needed to be concealed for their protection. This remedial measure will be taken at the discretion of the designated courts. If it feels such measures are not necessary in the instant case, no such measures shall be taken mandatorily.
  • A timely notice regarding the court hearings will be issued to the victim or, in the case of the deceased victim, to his/her family members. Especially, in hearing when the accused persons request for bail, discharge, release or parole, the right to be present and be heard is conferred on the victim or his/her family members. They are even entitled to submit their written submissions after an order for conviction or acquittal is passed.
  • The victim or the next of kin of the deceased victim, if he/she so chooses, shall receive free legal aid services from the advocate of his/her choice from the legal aid panel members under the Legal Services Authorities Act, 1987.

Punitive measures

The Court also specified punitive measures if the official concerned did not abide by the said guidelines and did not take any preventive and remedial measures.

  • If a police officer or an officer of the district administration is found to have failed to follow the above-mentioned directions of the court to stop and/or to investigate and/or to facilitate the speedy trial of any crime of lynching and mob violence, then it shall be deemed to be an act of deliberate negligence and misconduct on the part of such officer.
  • Such an act of deliberate negligence and misconduct must be punished by the government, apart from the departmental inquiries initiated against the individual under the service rules.
  • The state government are to take disciplinary actions against the officers concerned if it finds that:
    • The officer did not take any actions to stop the incident of lynching or mob violence despite having prior knowledge that the said incident was about to take place; or
    • Where the offence had already been committed, the officer did not instantly arrest and start the criminal proceedings against the culprits involved in the violence.

Aftermath of the case

On the date of 20th August 2018, the Supreme Court started observing the enforcement of the guidelines issued in the judgement of the case. In the first hearing after giving the judgement, the court formally rebuked the states who had not given the compliance report, gave the states a deadline to submit the report and warned them that they were to face strict consequences for non-submission of such reports. Complying with this order, a few states, namely Assam, Bihar, Gujarat, Haryana, Jharkhand, Madhya Pradesh, Rajasthan, Tamil Nadu, Tripura, Uttar Pradesh and UT of Lakshadweep, submitted their compliance report.

In January 2020, the Ministry of Information and Broadcasting informed it had issued orders to private television, besides Doordarshan as it is already following them, and radio channels to follow the 2018 guidelines given by the Supreme Court in the Tehseen Poonwala case. Apart from this, the ministry also directed them to scroll the following two informational messages on their screens in order to spread awareness about the same.

  1. Mob violence and lynching are heinous crimes and invite serious consequences under the law.
  2. Mob violence and lynching are serious criminal offences and invite stringent punishment under the law.

The case of Shaheen Abdullah vs. Union of India & Ors. (2023) dealt with the petitions where the petitioners requested the Court to direct the government to take action to decrease hate crimes. On 25th August 2023, the Supreme Court, while hearing the Shaheen Abdullah case, asked the state governments to respond whether they complied with the guidelines given in the Tehseen Poonwala case. In November 2023, the central government responded and informed the Court that the 28 states, namely Andhra Pradesh, Arunachal Pradesh, Assam, Chhattisgarh, Goa, Haryana, Himachal Pradesh, Jharkhand, Karnataka, Madhya Pradesh, Maharashtra, Manipur, Meghalaya, Mizoram, Odisha, Punjab, Rajasthan, Sikkim, Telangana, Tripura, Uttarakhand and Uttar Pradesh, and union territories, namely Andaman and Nicobar Islands, Delhi, Jammu & Kashmir, UT of Ladakh, Lakshadweep and Puducherry, appointed Nodal Officers in each district in their respective states following the 2018 guidelines.

Provisions relating to mob violence in Bharatiya Nyay Sanhita (BNS)

By complying with the direction given by the Supreme Court to make separate provisions in the Penal Code to punish acts of mob violence, the Parliament of India included the following provisions in the Bharatiya Nyaya Sanhita, 2023.

Section 103(2) of the BNS

Section 103 of the BNS prescribes punishment for the offence of murder which was defined under Section 101. Clause (2) of Section 103 prescribes punishment for murder if done by five or more persons on the grounds of race, caste or community, gender, place of birth, language, personal belief or any other similar group.

However, there are a few concerns as to the clarity of the language in the above provision. A few concerns are-

  1. The provision did not mention whether the intention to murder on the basis of the victim’s social profile is necessary to be liable for punishment.
  2. The expression “any other similar ground” seems to be wide enough and, hence, creates an ambiguity regarding the scope and ambit of the provision.
  3. It does not specifically mention that this clause relates to mob lynching. Also, it seems as if the provision only provides punishment for murder involving a special fact situation which is an aggravated circumstance and does not specially create a separate offence. 

The punishment prescribed is either death penalty or life imprisonment. 

Section 117(4) of the BNS

Section 117 prescribes punishment for the offence of voluntarily causing grievous hurt. Clause (4) of Section 117 provides an aggravated circumstance, whose ingredients are-

  1. Accused persons involved in the offence are five or more persons;
  2. All those acted or performed their respective tasks in concert;
  3. Anyone or more persons cause grievous hurt to the victim;
  4. Such offending act is committed on the grounds of race, caste or community, gender, place of birth, language, personal belief or any other similar ground.

The punishment prescribed is either simple or rigorous imprisonment upto seven years and a penalty which will be fixed by the court at its discretion. Here, it is pertinent to note that the punishment for voluntarily causing grievous hurt is the same as the punishment for causing grievous hurt by a mob. This raises doubt on the reason and intention of the legislature behind introducing this separate category of offence. 

Conclusion

Mob lynching questions the functioning of the law enforcement agencies in the country. There cannot be a judgement and punishment of a crime by individuals on the street. People do not have the authority to become the guardians of the law and enforce the law according to their will. Everybody has a right to a fair trial and to be considered innocent until proven guilty by the court and, if convicted, shall be awarded punishment as per the judgement of the court based on the aggravating and mitigating circumstances. But killing a person barely on the perception that the individual might have committed a crime is a barbarous act in itself and should be avoided at all times. No individual shall think that he has the power to behave like he is the law and the punisher in himself and this kind of thinking shall not be entertained in a country where the rule of law prevails.

India is facing the problem of mob attacks and lynching and such incidents are increasing year by year. Conscious of this fact, the Supreme Court directed the legislature to insert separate penal provisions to deal with such criminal acts by mobs and prescribe appropriate punishments for the same. The current government, complying with this direction, inserted new sections in the Bharatiya Nyaya Sanhita, 2023. However, proper implementation of preventive measures is vital in a balanced society and for the safety and security of the public. As per the preventive measures, one important measure is that the State and its instrumentalities have to look into the factors causing such incidents and take immediate action. In spite of adopting preventive measures with full force, if the incidents are still happening, then the remedial and punitive measures should take effect, as specified by the Supreme Court. Thus, if these guidelines that were given by the Court in the case of Tehseen Poonawalla were implemented by the governments, both centre and states, with utmost sincerity, then cases of mob lynching would reduce significantly and, subsequently, our country would be free from such commissions.

References

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