CASE ANALYSIS OF

Tehseen S. Poonawalla vs Union Of India

(WRIT PETITION (CIVIL) NO. 754 OF 2016)

By:-
ATHUL VERGIS CHERIAN
1stYr., BBA.LLB.
SCHOOL OF LAW CHRIST UNIVERSITY, BANGALORE
Email: athul.cherian@law.christuniversity.in

www.probono-india.in

DECEMBER 25 , 2020
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ABSTRACT
The following is a briefcase analysis of the case titled Tehseen S. Poonawalla vs Union Of
India (WRIT PETITION (CIVIL) NO. 754 OF 2016). Distressed by the increasing incidents
of cow vigilantism in the country, three individuals: Martin Macwan, a Dalit rights activist;
Mohan Bhai, Hamir Bhai, Bedva, an alleged victim of such violence and Tehseen
Poonawalla, an activist lawyer, filed the writ petitions in Supreme Court in August 2016.
They sought the Court to issue a direction to the Centre and some States to take action against
cow vigilantes. The Petitioners drew the Court's attention to the rise of cow vigilantism
incidents, where private citizens violently punish people whom they suspect of consuming
beef. The petitioners challenged the provisions of cow protection laws of 6 States protecting
cow vigilantes – Rajasthan, Uttar Pradesh, Maharashtra, Gujarat, Jharkhand, and Karnataka.
In particular, they challenge the provisions that prohibit any legal action against persons for
actions done in 'good faith' under the law.

KEYWORDS - Cow-Vigilantism, Law, Violence, Challenged, Cow Protection

Laws.

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INTRODUCTION
The case is a Criminal Appeal No. 754 of 2016.
This case is in relation to the incidents of cow vigilantes in the country.

BRIEF FACTS OF THE CASE

● The case is related to the incidents of cow vigilantes in the country.
● After a spate of incidents of lynching in Dadri, Jharkhand and more by cow protection
groups, distressed activists filed writ petitions in the Apex Court.
● Tehseen Poonawalla, a social activist, filed a writ petition under Art. 32 of the
Constitution against the Respondent States.
● Tushar Gandhi filed the second PIL to initiate State responsibility for such mob
incidents.
● The petitions were heard together by a three-judge bench.

ISSUES OF THE CASE

1. Whether the States and Centre should develop effective and immediate action plans to be
undertaken against these violent cow protection mobs?
2. Whether the States and Centre should further remove the violent social media content
uploaded by these groups?
3. Whether individual sections of acts which provide for the protection of cows such as
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 are unconstitutional?

ARGUMENTS FROM THE APPELLANT SIDE

Mr Hegde, in the 2016 petition, argued that no individual can engage themselves in such
action on the mere perception of a crime and that legal proceedings should be followed.
Stress was laid on remedial, punitive and preventive measures.
Ms Indira Jaising argues that law enforcement agencies of States have a duty to register the
FIR and prevent such incidents, argued for patrolling on highways and stated that under Art.
256 and 257 of the Constitution it is the Central Government's responsibility to issue
directions to the States to keep cooperative federalism intact.

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She further submitted that it is the duty of both the State and the Centre to ensure that
minorities are not targeted due to misinformation and hatred, and stringent actions are taken
especially when approached by family members.

ARGUMENTS FROM THE PROSECUTION SIDE

Ms Hemantika Wahi stated that in the State of Gujarat, all those persons who were involved
in the lynching activities have been arrested and booked for relevant offences and necessary
police action is taken against them.
Mr Tapesh Kumar Singh stated that in Jharkhand, legal actions had been taken against and
criminal cases have been registered against the persons 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 State, as law and order is a state subject and that the Union of India
does not support the lynching activities by the vigilante groups.

VIEWS OF THE COURT

The bench of the Supreme Court comprising Chief Justice Dipak Misra, A.M Khanwilkar,
and Dr D.Y. Chandrachud gave the judgement, in this case, addressing all the sensitive issues
and issued specific guidelines covering the area of preventive, remedial, and punitive
measures to suppress the activities of lynching in the country.
The Supreme Court held that law enforcement agencies must look after the proper
administration of law and no private individual shall be allowed to take law in their hands or
behave in a fashion that they are the law themselves. The Supreme Court was referring to the
learned Senior Counsel Sanjay R. Hedge's suggestions in which the petitioner wanted the
Court to take 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 stated that no person or vigilante group could
involve themselves in the 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 and the recent case of Shakti Vahini v. Union of India
was cited.
After listening to all the arguments, the Supreme Court 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

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measures would face failure, the crimes will be controlled by the remedial and punitive
measures.

Preventive measures
● The state governments would appoint a senior police officer, not below
Superintendent of Police's rank as a nodal officer in each district. The nodal officer
shall be helped by one of the DSP rank officers in the district for taking actions to
stop the incidents of mob violence and lynching. A special task force shall be made to
get the 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 made-up news.
● Districts, subdivisions, and villages will be pinpointed by the state governments
where cases of mob lynching have been reported recently.
● It will be the nodal officer's duty 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.
● Regular meetings were to be held by the nodal officer to identify any chances of mob
lynching and take necessary steps to stop any spread of violent content on different
social media platforms.
● Police officers should use their power under Section 129 of CrPC to deal with cases
of mob lynching and under circumstances where he or she thinks that a similar crime
may be committed in their presence.
● A warning should be given by the Central and State governments on radio and
television and other media platforms, including the official website of the law
enforcing agencies that lynching and mob violence will invite serious actions under
the law.
● The Central and State governments should take steps to curb and stop the
dissemination of violent posts on social media platforms which tend to provoke mob
violence and lynching of any kind.
● Police are to register FIR under Section 153A of IPC and relevant provisions of law
against individuals who spread the hateful message on social media platforms which
is likely to provoke mob violence and lynching cases.

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 ● The state government shall be directed by the Central Government's advisories, which
shall show the seriousness of the situation and the actions to be taken by the state
government.

Remedial measures
● If any case of mob lynching comes to the local police station's notice, an FIR should
be immediately lodged without any delay.
● The police station where the FIR is lodged shall inform about the same to the district's
Nodal Officer.
● The nodal officer shall personally monitor the investigation in such cases to ensure an
effective investigation and that the charge sheet is filed within the statutory period.
● The state government shall prepare a compensation scheme in light of Section 357A
of CrPC to help the victims' family.
● Fast track courts should be established to ensure speedy trials of the cases of lynching
and mob violence.
● The trial courts should award the maximum sentence to the convict to set stern
examples in lynching and mob violence cases.
● Actions shall be taken to conceal the witness's identity and address of the witness for
their protection.
● The victim or the next of the deceased victim's kin shall receive free legal aid under
the Legal Services Authorities Act, 1987.

Punitive measures
● If a police officer or an officer of the district administration is found to have failed to
follow the 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 acknowledged
as an act of deliberate negligence and misconduct.
● The government must punish such an act of deliberate negligence and misconduct,
and departmental inquiry must be initiated against the individual.
● The state government are to take disciplinary actions against the officers if it found
that:
1. 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.

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 2. The officer did not instantly arrest and start the criminal proceedings against the
culprits involved in the violence.

ANALYZING THE JUDGEMENT

This judgment lays down specific suggestions which should have eliminated or at least
drastically reduced this crime. Some of them are discussed below along with the way in
which they have malfunctioned:
It is critical to note that the judgment has three parts as guidelines, namely preventive,
remedial and punitive. Much emphasis was given on the preventive part in order to paralyze
the commission of this crime in its initial stages. The Court suggested forming a special task
force to procure intelligence reports on subjects likely to commit or incite such offence. The
Director-General of Police and Secretary of Home Department of the States were directed to
take regular meetings at least once a quarter with all nodal officers and State Police
Intelligence heads. The question arises whether such meetings have been transformed into
reality, and what are their outcomes? If the answer is optimistic, it casts severe doubt on their
efficacy as crime rates relating to mob lynching are rising.
One of the most effective methods of controlling such crime was suggested by Senior
Counsel Ms Indira Jaising. She proposed for police patrol in sensitive areas. No such
initiatives have been reported in the likes such as incidents being halted by patrolling police
cars. Instead in several instances, the family members of the victim and witnesses of the
crime have reported that delay in the arrival of the police was a significant cause for
aggravation of the situation leading to the victim's death and effective deployment of police
personnel could have prevented the crime from taking place.
The Court also recommended that the Parliament create a specialized offence for mob
lynching and allocate adequate punishment. Despite the Court's inclination for a particular
law, the Centre which is responsible for legislation in Parliament did not implement the
Court's recommendation. The Centre constituted a group of Ministers (GoM) for the purpose
of considering the nature of legislation to be brought in. The idea of the creation of a
particular law seems far from reality in light of such slothful developments.
While the Supreme Court cited various insightful literature of American Civil Rights
movement proponent Martin Luther King Jr. and American Jurisprudence on Liberty etc., it
failed to provide a concrete and realistic definition of mob lynching in its judgment which has
left the Parliament open to initiate an endless debate as to what constitutes this crime and the

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methodology and quantum of punishment. In the absence of this much-needed definition the
crime of mob lynching is being dealt with a general manner since it is partly covered under
Section 302 (murder), 307 (attempt to murder), 323 (causing voluntary hurt), 147 (rioting),
148 (rioting armed with deadly weapons) and 149 (unlawful assembly) of the Indian Penal
Code(IPC), 1860. This has utterly violated the idea of a separate crime and has decimated the
required attention with regard to the sensitivity of this crime.
The Hon'ble Supreme Court's guidelines have also been neglected in the context of the Centre
and state governments' failure to follow the direction to broadcast on radio and television that
lynching and mob violence of any kind would attract severe consequences under the law. The
concluding recommendation of the case was a separate offence for lynching; however, as of
now, NCRB (National Crime Records Bureau) neither recognizes 'Mob Lynching' as a
separate branch of crime maintains separate statistics on it.

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 guardian of law and enforce the law according to
their will. Everybody has a right to a fair trial and to be held innocent until proven guilty by
the Court and if convicted, shall be awarded punishment as per the judgement of the Court.
However, 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 has enough legal provisions laid down in IPC and CrPC to deal with all sorts of
criminal acts, and if these provisions are backed by the guidelines set by the case of Tehseen
Poonawala, we will have the adequate legal power to deal with cases of mob lynching.

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REFERENCES
1.https://blog.ipleaders.in/fake-news-mob-lynching-cow-vigilantism-case-analysis-tehseen-s-
poonawala-v-uoi/
2.https://criminallawstudiesnluj.wordpress.com/2020/02/11/the-epidemic-of-mob-lynching-
in-india-analysing-tehseen-s-poonawalla-v-union-of-india/
3. https://indiankanoon.org/doc/71965246/?
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