TEHSEEN S. POONAWALLA VS UNION OF INDIA

 

CASE COMMENT

TEHSEEN S. POONAWALLA VS UNION OF INDIA

DATE OF THE CASE : 17th july 2018

APPELLANT: Tehseen S. Poonawalla

RESPONDENT: Union Of India and others.

BENCH/JUDGES: Chief Justice Dipak Misra, A.M Khanwilkar, and Dr. D.Y. Chandrachud 

LEGAL PROVISIONS: The Constitution of India, 1949 (Article 21, 32),  Gujarat Animal Prevention Act 1954 , Maharashtra Animal Prevention Act 1976 , Karnataka Prevention of Cow Slaughter and Cattle Preservation Act 1964.

 FACTS:

·       Several incidents of mob lynching had happened in India in the name of cow vigilantism and disturbed by these events, three individuals namely Mohanbhai Hamir Bhai Bedva, Matin Macwan, a Dalit rights activist, and Tehseen Poonawalla, a social activist, filed a writ petition under Article 32 of Indian constitution.

·       Mob lynching incidents which were highlighted in the writ petition are: The hanging of two men in Balumath forests in Latehar District in Jharkhand , The flogging of Dalits in Una, Gujarat , Mob lynching Pehlu Khan in Alwar district in Rajasthan , Mob lynching of Mohammed Akhlaq in the town of Dadri in Uttar Pradesh.

·       The cow protection laws of 6 states- Gujarat, Jharkhand, Karnataka, Maharashtra, Rajasthan, and Uttar Pradesh, were challenged by the petitioner. The particular provisions were challenged which absolved individuals from legal liability for actions done in good faith.

·       The petitioner wanted the respondent states to take necessary and instant actions against all those cow protection groups who were involved in violence and to remove anything violent content posted on social media by the said groups.

ISSUES RAISED :

·       Whether immediate and necessary actions should be taken by the states and Centre against the cow protection groups for indulging in violence?

·       Whether the Centre and states should issue a further writ to remove all the violent content posted on social media by these cow protection groups?

·       Whether certain provisions of animal protection laws such as  section 12 Gujarat Animal Prevention Act 1954 , section 13 Maharashtra Animal Prevention Act 1976 , section 15 Karnataka Prevention of Cow Slaughter and Cattle Preservation Act 1964 are unconstitutional?

CONTENTION :

Arguments from petitioner’s side :

·       It was argued by Mr. Sanjay R. Hedge that no person or cow protection group can involve himself/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 legal procedures provided under the law have to be followed and no one should take laws in their hand.

·       It was argued by Ms. Indira Singh that it is the duty of the Union and the states to take immediate measures to stop such violent activities and it is on the Centre and the state to make sure that the minorities are not targeted by the mob violence and these vigilante groups and if these activities of lynching are not stopped, individuals will start taking the law into their own and enforce the law according to their judgement. 

·       It was further argued by her that the Central Government has the authority to intervene in the practice of powers by the States, conferred by Article 256  and Article 257 of the Indian Constitution.

Arguments from Respondent’s side :

·       It was stated by Ms. Hemantika Wahi that in the state of Gujarat, all those persons who were involved in the lynching activities have been arrested and booked for relevant offenses and necessary police action is taken against them.

·       Mr. Tapesh Kumar Singh stated that in the state of Jharkhand, legal actions have been taken against and criminal cases have been registered 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 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.

RATIONALE

·       In this landmark case of Tehseen Poonawalla vs. Union of India and others, the bench led by former CJI Deepak Mishra which comprising of A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ passed a judgement in order to tackle this situation present in the country. This judgement highly criticized the incidents of mob lynching and has caused a major shift in the manner in which this crime was handled before the passing of this judgement.

·       As the number of incidents of cow vigilantism kept on increasing in the nation, three individuals, namely Martin Macvan, a Dalit right activist, Mohanbhai Hamir Bhai Bedva, an alleged victim of such violence and Tehseen Poonawalla, an activist lawyer filed a writ petition in the Supreme Court of India in August 2016 in order to take action against these cow vigilantes and provide justice to the victims of these mob lynching incidents. The petitioners asked the Supreme Court to issue notice to the central and state governments to take action against cow vigilantes.

·       The petitioners brought to the attention of the court the increasing incidents of cow vigilantism around the nation. They made the Supreme Court to notice these acts by mobs where private people violently punished others who they suspect of consuming beef. The petitioners filed this writ on the basis of increasing cow vigilantism all over the nation. In 2015, a mob of villagers attacked a 52-year-old Mohammed Akhlaq blaming him for stealing and slaughtering a calf. In the attack, Mohammed Akhlaq died and his son 22 years old, Danish were severely injured. Later the state government issued a report stating that Mohammed Akhlaq didn't store the beef for consumption.

·       Another incident of cow vigilantism is seen when 7 members of a Dalit family were assaulted by a mob in the name of cow protection in Una, Gujarat. The most recent case of cow vigilantism is the case of Pehlu Khan. In this case, Pehlu Khan and his son were thrashed by the cow vigilantes in the name of cow protection in suspicions of cow smuggling. On the basis of these cases and many other similar cases, the petitioners asked the supreme court of India to intervene in this situation and take necessary actions.

·       Six states which include Rajasthan, Uttar Pradesh, Maharashtra, Jharkhand, Gujarat and Karnataka enacted laws that protect such cow vigilantes for their illegal acts in the name of cow protection. These states enacted laws that prevent any legal action against persons for actions done in good faith.

·       For example the section 13 of the Maharashtra Animal Preservation Act, 1976 gives that no suit, prosecution or other legal proceedings shall be instituted against any person for anything which is in good faith or intended to be done under this Act. Such acts by these governments helped the cow vigilantes to hide behind them. They justified their lynching by these acts. The petitioners thus asked the supreme court of India to revoke these acts and ask the union government to take actions against cow vigilantes.

·       The petitioners were represented by Indira Jaising, Kapil Sibal, Colin Gonsalves and Sanjay Hegde while the defenders were represented by Tushar Mehta, Ranjit Kumar, Hemantika Wahi and Shreyas Jain.

DEFECTS OF LAW

·       Article 21: Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law. This right is available to all citizens as well as non-citizens alike.  Supreme Court has described this right as the “heart of fundamental rights” . According to Justice Bhagwati, Article 21 “embodies a constitutional value of supreme importance in a democratic society.” Article 21 secures two rights: The right to life and the Right to personal liberty , Article 21 cannot be suspended during an emergency.

·       Article 32 : Remedies for enforcement of rights conferred by this Part

1.     The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed

2.      The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part

3.      Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )

4.      The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

·       Section 12  Gujarat Animal Prevention Act 1954 - Protection of persons acting in good faith under the Act or rules -No suit, prosecution or other legal proceedings shall be instituted against any person for anything which is in good faith done or intended to be done under this Act or the rules made thereunder.

·       Section 13 Maharashtra Animal Prevention Act 1976 - Protection of persons acting in good faith under Act or Rules - No suit, prosecution or other legal proceedings shall be instituted against any person for anything which is in good faith done or intended to be done under this Act or the rules made there under.

·       Section 15 Karnataka Prevention of Cow Slaughter and Cattle Preservation Act 1964- Protection of persons acting in good faith.—No suit, prosecution or other legal proceedings shall be instituted against the competent authority or any person exercising powers under this Act for anything which is in good faith done or intended to be done under this Act or the rule made thereunder. 

INFERENCE

·       As per my understanding the Judgement of this case can be said as an almost appropriate one. The guidelines issued by the Supreme Court of India would of course help in reducing the illegal act of cow vigilantism. Similarly the preventive measures will also contribute to the prevention of such acts. Remedial measures so suggested by the Supreme Court will provide some relief to the victims or families of the victims of the act of cow vigilantism.

·       What the court faced in this case were an important social issue which affected the integrity of the nation. Killing of people by other private person in the name of cow protection not only deprive the fundamental rights of these people but also affects the face of the largest democratic country in the world. A nation must be able to protect its minority. More than that killing of its people in the name of an animal cannot be justified in any manner. Laws are set up with an aim to prevent crime.

·       But for this aim to be successful there is a need of discipline in the system. The law violators should of course be punished. But this punishment must be done in a specific way. The violator must be provided with a free trial and if found guilty must be punished by the administration. The punishment in no way could be done by a private citizen. No private person can punish another assuming that person to have committed a crime. Even if a person has committed a crime, another private person has no authority over him to punish. Instead he should inform the authority of the act that has taken place.

·       It has to be noted that the court did take an almost appropriate decision.

·       No citizen is above the law. Every law breaker must be punished. But it is important to note that punishment should be done by the administration not the private citizen. No private people have the right to punish other no matter what. By stating the case of Wilson v. Garcia, the court held that every person equal before the law and no person shall take law to his own hand.

·       It is the duty of the state to protect its people. The government can not allow innocent people to be tortured by other private citizens by taking law in their hands. The state can not allow communal violence in the name of cow protection. In the case of Mohd. Haroon and others v. Union of India and others, the court held that it is the responsibility of the state administration to prevent communal violence.