CASE COMMENT: TEHSEEN POONAWALLA v. UNION OF INDIA

AUTHOR- Sai Harshita Kachhawaha, Indore Institute of Law.

1. FACTS OF THE CASE

The petitioner, a social activist, is very concern about asseverations with regard to numerous incidents of lynching and mob violence. He has preferred this writ petition under Article 32 of the Constitution for commanding the respondent-State Nos. 3 to 8 (respective States) to take immediate and necessary action against the cow protection groups indulging in violence (or so called cow-vigilantism); and further to issue a writ or direction to remove the violent contents from the social media uploaded and hosted by the said groups.

2. ISSUES OF THE CASE

1. Whether States and the Centre should frame a victim compensation scheme to address the issue of lynching?

2. Whether State and Centre government should make separate laws addressing the offence of lynching?

3. Whether State cow protection laws, which protect cow vigilantes acting in “good faith”, are constitution?

3. RULES

Constitution of India, 1950:

1. Article 32

2. Article 21

Indian Penal Code, 1860:

1. Section 153A

2. Section 295A

3. Section 14A,

4. 14 Clause(1) Sub clauses (a-e)

Code of Criminal Procedure, 1973:

1. Section 129

2. Section 357A

Other State Acts:

i) Section 12, the Gujarat Animal Prevention Act, 1954.

ii) Section 13, the Maharashtra Animal Prevention Act, 1976.

iii) Section 15, the Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964.

4. APPLICATION:

1. Whether States and the Centre should frame a victim compensation scheme to address the issue of lynching?

The State Governments will set up a lynching/crowd brutality casualty remuneration conspire in the light of the arrangements of Section 357A of Cr.P.C. inside one month from the date of this judgment. In the said conspire for calculation of pay, the State Governments will give due respect to the idea of real injury, mental injury and loss of profit including loss of chances of work and instruction and costs brought about because of legitimate and clinical costs. The said remuneration conspire should likewise have an arrangement for between time help to be paid to the victim(s) or to the closest relative of the expired inside a time of thirty days of the occurrence of horde savagery/lynching.

2. Whether State and Centre government should make separate laws addressing the offence of lynching?

Aside from the headings we have given hereinbefore and what we have communicated, we think it suitable to prescribe to the law making body, that is, the Parliament, to make a different offense for lynching and give sufficient discipline to the same. We have said so as an exceptional law in this field would in grain a feeling of dread for law among the individuals who include themselves in such sorts of exercises. There can be no trace of doubt that 45 fears of law and veneration for the command of law constitute the foundation of a civilized society.

3. Whether State cow protection laws, which protect cow vigilantes acting in “good faith”, are constitution?

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 monocracy 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.

The Court in Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi and others v. State of U.P. and others 10 (1997) 4 SCC 606 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 other’s religion; religious faith and belief. Integration of Bharat is, thus, its arch.”

5. CONCLUSION

Mob lynching is a form of communal violence. While the number of communal riots reported has reduced, communal violence is expanding its footprint through mob lynching. In spite of the guidelines of the Supreme Court, which emanate from its acknowledgement of this heinous crime, to deal with this dehumanizing menace, the number of mob lynching reported has increased. This is possible owing to the instrumental use of the lynching to exercise control, demonstrate power and marginalize the Muslims, Adivasis and Dalits. The result is a society which is fractured along lines of religion, hate filled, spiraling into unending violence, lawlessness and morbid collective which is an anathema to a democracy. Though the political landscape of India is fast changing with discriminating legislations and resistance, mob lynching has been a reality to deal with. This reality doesn’t just haunt and scar the survivors of mob lynching and their families but also the moral conscience of India. Or at least one expects that it should have.