Day 6 Arguments: 3rd July, 2017

At around 12.15 p.m. today, the three-judge Bench comprising of Chief Justice Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud resumed its hearings in the petitions challenging certain provisions of the cow protection legislations across various states. In the previous hearing, the Bench had directed all states to file compliance reports with respect to appointment of nodal officers.

 

In the first week after vacations, the Court hears miscellaneous matters everyday as is the practice. Most such matters are heard for merely 5 to 10 minutes. However, the Court patiently heard this matter for about half an hour.

 

Senior Advocate Sanjay Hegde opened his arguments by handing over documents to the Bench which had a chronology of all the previous orders passed by this Court in this matter. He then requested the Court to issue a contempt notice to the states for failing to comply with the previous orders. Justice Dipak Mishra observed that cow vigilantes can’t take the law in their hands. Senior Advocate Indira Jaising got up from her chair to stress that despite substantive orders, lynchings had taken place in the vicinity of the capital city of Delhi.

 

Additional Solicitor General P.S. Narasimha intervened to mention that since law and order is a state subject under the Eight Schedule (List II), the Union Government could not issue any specific directives. Aishwarya Bhati (Additional Advocate General) for the State of Uttar Pradesh (UP) immediately stood up to press the point that UP had appointed nodal officers.

 

Sanjay Hegde proceeded to make his substantive arguments by referring to the judgment in Shakti Vahini v. Union of India where the Supreme Court had issued broad guidelines with respect to honour killings. These guidelines were in the nature of preventive, remedial and punitive measures. Mr. Hegde requested the Court to issue similar guidelines with respect to cow vigilantism.

 

He then proceeded to read out some of his suggestions to tackle the cow vigilantism. Some of his suggestions include having nodal officers not below the rank of Superintendent of Police, identifying districts prone to cow vigilantism, duty of the police officer to prevent incitement and dissemination on social media and monitoring targeted violence. Justice Dipak Misra nodded in agreement with the suggestions but did not say anything specific on the same.

 

Ms. Indira Jaising interjected to point out that cow vigilantism was in the nature of crime and was not just an issue of “law and order”. She was forceful in urging the Court to monitor investigations under Article 142. She requested that an appropriate scheme be framed for vigilantism.

 

At this moment, the judges conferred amongst themselves in hushed tones. Justice Dipak Misra then observed that this was a matter of mob violence and should not be perceived from the lens of any specific class of incidents. Accordingly, no motive can be assigned to instances of cow vigilantism. He referred to Article 256 and Article 257 to mention that any scheme on vigilantism was unnecessary in the context of the statutory provisions assigning legal duty upon the states.

 

Mr. Colin Gonsalves stood up from his chair and brought to the Court’s attention the case of Pravasi Bhalai Sanganathan v. Union of India. He specifically highlighted the guidelines on communal harmony mentioned in this particular case. This case seemed to have caught the attention of the Bench and the respondents' lawyers particularly who immediately noted down the citation of this particular case.

 

At Justice Misra’s insistence, he read out the provisions dealing with hate speech in the Indian Penal Code namely Section 153 A and Section 153 B of the Indian Penal Code, 1860. While Justice Misra dismissed any links with communal harmony in this particular case, he seemed to nod in agreement with the provisions on hate speech.

 

Justice Dipak Misra added strenuously that the Court is against incidents of cow vigilantism but cannot go beyond constitutional parameters to give specific directions. At this point Ms. Indira Jaising insisted that a specific responsibility be fixed on the Union. Mr. Narasimha quipped that the Union is feeling responsible. Ms. Jaising countered that there is a difference between responsibility and action. She also remarked that there was an attempt to delete the respondents, namely Union of India, from this case which Ms. Narsimha denied. A few tense moments ensued at this suggestion by Ms. Indira Jaisingh with Justice Dipak Misra trying to calm down the heated arguments.

 

Ms. Indira Jaising then shifted her strategy to refer to Swaraj Abhiyan v. Union of India where the Court had requested the centre to consider framing model rules with respect to food security since the states had failed in their statutory duty. The judges conferred amongst themselves with Justice Chandrachud referring to the Constitution of India.

 

Mr. Colin Gonsalves cautioned against an alarmist approach but pointed out that the states had failed to take any substantive action in the last two years. Ms. Jaising then asked the Bench to consider the matter in the light of Article 15 which is an anti-discrimination provision. She alluded that the Constitution is geared towards protecting vulnerable communities. Justice Dipak Misra disagreed and stated that anyone can be a victim. Justice Dipak Misra stressed yet again that the Court is against mob violence.

 

Justice Dipak Misra assured the litigants that the Court would continue to hear the matter. No contempt notice was issued as urged by Mr. Hegde. The Bench reserved judgment.

(This report has been prepared by Samya Chatterjee)