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An analysis of the Haryana government’s bill to recover damages from protestors

September 27, 2021
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This article is written by Ronika Tater from the University of Petroleum and Energy Studies, School of Law. In this article, she discusses the recent Bill passed by the state government of Haryana. It also provides a relation between the fundamental rights of the protestors and the right to protest peacefully with the support of case laws and other relevant provisions.

Introduction

Recently, the Haryana Government passed the Haryana Recovery of Damages to Property During Disturbance to Public Order Bill, 2021 (hereinafter referred to as the “Bill”) amid the protest by the opposition. The Bill provides for the recovery of damages to public or private property by protestors during times of agitation. It also states that if any person is leading, organizing, planning, exhorting, instigating, participating, or committing any incidents which would lead to public or private damages, they would be liable to pay compensation as per the provisions mentioned. On the one hand, this Bill has been considered as a move to victimise the innocent or the politics of the ongoing farmer’s protest. On the other hand, this Bill protects the public and private property of the people from any unknown agitation around the State. Similarly, earlier the Uttar Pradesh Government has also passed a Bill named Uttar Pradesh Recovery of Damages to Public and Private Property Act, 2020.

Key points about the Bill

The following are some of the key points mentioned in the Bill:

Need for this Bill

This Bill has received a vociferous protest from the leaders of the opposition claiming it to be “anti-people”. It takes away the very essence of democracy and encourages dictatorship. They also pointed out that the motive of the Bill is to harass innocent people and there is already a law regarding the destruction of public property in the Indian Penal Code, 1860 (IPC). This Bill also violates the fundamental rights under Article 19 and Article 21 of the Constitution of India. The State Government stated that it is not anti-people or violative of fundamental rights. The government also stated as follows:

Legal provisions

The Prevention of Damage to Public Property Act, 1984 (“PDPP Act”) provides the provision for punishment to any person who commits mischief by doing any act to damage any public property with a term of imprisonment for five years and a fine or both. The provision of this law is synchronous to the provisions of IPC. Despite a law against the destruction of property, there is still an increasing rate of incidents of rioting, vandalism, and arson during the time of protests across the country. Subsequently, in 2007 the Supreme Court took suo motu cognizance of these incidents and constituted two committees headed by former Apex Court judge Justice K T Thomas and senior advocate Fali Nariman to provide suggestions to the said law. 

Thomas committee

Following are some of the recommendations mentioned by the Thomas committee:

The Supreme Court accepted the above-mentioned suggestions.

Fali Nariman committee

Following are some of the recommendations mentioned by the Fali Nariman committee:

The Court accepted the above-mentioned suggestions.

Guidelines by the Supreme Court

The Court has the power to issue guidelines, in the case of Union of India v. Association, (2002), it was held that the Courts are not envisaged with the power to amend the Act and the Rules. It also stated that while providing directions it should be contrary to the Parliament Act and the Rules. However, in a case where the Act or the Rules are silent on a particular subject, the courts can issue necessary directions or orders to fulfil the vacuum or void of the said law enacted. In the instant case of In Re: Destruction of Public & Private Properties v. State of A.P and Ors.,(2009), the Supreme Court issued the following guidelines based on the recommendation of the two expert committees:

Recent case law

In the case of Koshy Jacob v. Union of Indiaprotects, (2017), the petitioner who was forced to spend more than 12 hours on the road after undergoing surgery due to the ongoing agitation moved a petition to the Supreme Court seeking the implementation of the guidelines issued under Re: Destruction of Public & Private Properties v. State of A.P and Ors. The recommended amendments included making such agitations accountable and punishable under the criminal law, preventive measures such as videography and award for damages. Despite such recommendations, no legislation for the speedy mechanism has been put into action by the concerned authorities. Since no law has been into force, the petitioner had to approach the Supreme Court for suitable direction to seek compensation.

Moreover, the Court reiterated that the laws need to be amended and the following recommendation has been made to the concerned authorities as follows:

The following are some of the suggestions made by the Union of India to the concerned authorities to consider while making a proposed law, however, the Court in this instant case did not grant the petitioner any compensation since the evidence against the organizers were not brought before the Court.

Suggestions made by the Union

Following are some of the suggestions below-mentioned:

Conclusion

India’s history of protests derives its origin from Mahatma Gandhi’s path of civil disobedience, dandi march, and other non-violent protests which were a sine qua non of our freedom struggle. This legacy continued over the years and thereafter the right to protest peacefully was envisaged under the Constitution of India as a fundamental right. Over the years, these bandhs, hartals, and protests have taken the form of agitations and violence disrupting public property. Consequently, anything which is contrary to democratic values and morals should be checked and brought to the notice of the public with the right amount of justice.

References


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