This article is written by Adhila Muhammed Arif, a student of Government Law College, Thiruvananthapuram. This article seeks to analyse the recommendations of the K.T. Thomas committee and the F.S. Nariman committee and the guidelines issued in the case of Re: Destruction of Public & Private Properties vs. State of A.P. and Ors. (2009), and its aftermath.
This article has been published by Sneha Mahawar.
Date: 16 April 2009
Citation: WRIT PETITION (Crl.) NO. 77 OF 2007
Court: Supreme Court
Bench: Arijit Pasayat, Lokeshwar Singh Panta, P. Sathasivam
India has always had a tense political climate, leading to several instances of arson, rioting, and vandalism during protests and hartals in different parts of the country. With such instances, it is common to witness the destruction of properties, particularly public properties. It is necessary for us to reevaluate what our law says about such activities. Section 425 of the Indian Penal Code, 1860 recognizes the damage caused to anyone’s property as ‘mischief’. It is punishable under Section 426, which prescribes imprisonment for a period of three months, a fine or both. There is also special legislation called the Prevention of Damage to Public Property Act, 1984. Under Section 3 of the Act, whoever causes any harm or mischief to public property shall be punished with imprisonment for a term that may extend up to five years and with a fine. However, there have been concerns raised over the effectiveness of this legislation in dealing with public property destruction, leading the Supreme Court of India to take up suo moto proceedings.
Background of the case
The Supreme Court, taking various instances of large-scale destruction of public and private properties during protests and agitations into consideration, initiated suo motu proceedings on the 5th of June, 2007. The Court felt that the provisions in the Prevention of Damage to Public Property Act, 1984 were inadequate and that there is a need for change. As a result, two committees were set up by the Court, which was headed by a retired Judge of this Court Justice K.T. Thomas, and the other by senior advocate F.S. Nariman, to suggest amendments. Dr. Rajiv Dhawan was the amicus curiae in this case, who also suggested some guidelines for amendment.
Findings of the committees
K.T. Thomas Committee
The report by the K.T. Thomas Committee contained the following recommendations:
- The PDPP Act must be amended so as to incorporate a rebuttable presumption that the accused is guilty of the offence, after the prosecution proves that the accused had participated in such an event. Putting it simply, first, the prosecution must prove that public property was destroyed in a direct action called by an organisation of which the accused was a part, and that the accused had participated in the direct action. Once the prosecution successfully proves it, then the court is empowered to presume whether the accused is guilty or not, and this presumption could be rebutted by the accused. The accused must prove that he was not connected with the action called by his political party, or that he took all the reasonable steps to prevent causing damage to public property in the direct action called by his organisation.
- For leaders of the organisation that calls for action, there must be a provision for convicting them guilty of abetment of the offence. In most cases, it is the leaders of the organisation that instigate such actions, though they do not physically act, and order the grass root level workers to participate. In order to effectively put an end to such activities, it is necessary to hold such leaders accountable. However, the involvement of the leaders must be proven by direct evidence. No innocent person who is a leader of the organisation should be convicted merely because members of his organisation took part in such actions.
- There must be an amendment that enables police officers to arrange videography of the activities that involve damaging public property. The police officer who has the responsibility to act upon the direct action must avail the services of the videographer to accompany him or any other police officer deputed by him to the site or any place from where they can arrange videography. This is to be done either on receiving the information or on having a reasonable apprehension regarding the damaging of public property. The police officer shall authenticate the video by producing the videographer, along with the original tapes or CD or other material before the Sub Divisional or Executive Magistrate who shall record his statement regarding what he did. The Magistrate may entrust such CD/material to the custody of the police officer or any other person to be produced in court at the appropriate stage.
- The Committee also felt that there should be stricter provisions for securing bail for an accused who is arrested for damaging public property and that he should be granted bail only in circumstances where it is safe to assume that he is innocent.
- The Committee also believed that for a convict with imprisonment below the minimum period, the court must record special reasons.
- The Committee recommends that courts must be empowered to impose a fine that is equivalent to the market value of the property damaged during the event. On default, the offender shall undergo imprisonment for a further period which shall have a deterring effect, that encourages him to pay the fine.
- The Committee suggested several preventive measures that could be taken, which are the following:
- The organiser of a demonstration shall meet the police to review the route to be taken for facilitating a peaceful march or protest.
- All weapons, including knives, lathis and the like must be prohibited.
- The demonstration shall be supervised by the SP when the event is confined to the district, and the highest police officer in the State if it goes beyond. There must be marshals at each relevant junction.
- The police and the state government must ensure that the videography of the event is available.
- In case if the event turns violent, the officer in charge shall ensure that a video of the event is captured by the media. The officer can also request further information from the media and other people on the incident in question.
- The police shall also inform the state government about it and about the damages caused. The state government shall make a report from such police reports and other information, and file a petition in the high court or the Supreme Court.
F.S. Nariman Committee
The following are the guidelines proposed by the Nariman Committee:
- Those who take part in such violent protests or organise them must be held strictly liable for the destruction of the public and private property that occurs as a result of it.
- The Committee discussed the links between crime and tort and its relation with awarding damages as a deterrent in detail. The Committee was of the opinion that damages must be paid for the losses caused to properties in violent protests. Compensation must be paid by way of damages that puts the party who has suffered the damages in the same position as he would have been before the damage was caused.
- The Committee also recommended that the Supreme Court set up the machinery to investigate the damage caused and to award compensation.
- The Committee discussed in-depth the role of the media in reporting such incidents to the public. The Committee highlighted the need to regulate the media so that violent and sensitive incidents are reported in a balanced and objective manner. The Committee also suggested that journalists must operate as trustees of the public, reporting incidents independently with integrity. There must also be a mechanism for addressing complaints in a fair manner.
Finally, in 2009, the Supreme Court also issued some guidelines after taking the recommendations of the committees into consideration, which are as follows:
- Whenever such incidents happen that lead to the mass destruction of properties, the High Court of the concerned state must take suo moto action. The High Court must also set up the machinery to investigate the destruction caused, to estimate the damages or compensation to be awarded.
- When the incident has occurred over multiple states, the action must be taken by the Supreme Court.
- The court that is taking the action must appoint a sitting or retired High Court judge or a sitting or retired District judge as a Claims Commissioner to investigate the damages and liability.
- Along with the Claims Commissioner, an assessor may be appointed who can assist him.
- Both the Claims Commissioner and assessor may seek instructions from the court that appointed them, to receive the videography or any such recordings to find out the perpetrators and the damages caused.
- The principle of absolute liability must be applied once the link between the event and the damage caused.
- The liability is to be shared between the actual perpetrators of the crime and the organisers of the event.
- Exemplary damages may also be awarded, which is not greater than twice the amount of the damages to be paid.
- The damages shall be assessed based on the damage caused to the public and private properties, damages caused by the injury or death of persons. This also includes the cost of the actions that authorities had to undertake in efforts to prevent or counteract the incident.
- The Claims Commissioner shall make a report to the concerned court, which will help in determining the liability of the parties.
However, the Court stated that such guidelines will be applicable only when there is an absence of legislation. Moreover, when appropriate legislation that is consistent with the guidelines is put into effect, the guidelines will cease to be operative. It was left to the authorities to implement the guidelines.
Draft Prevention of Damage to Property Act (Amendment) Bill, 2015
After the guidelines were issued, we have never had any legislation that incorporated the aforementioned guidelines. There was a draft Prevention of Damage to Property Act (Amendment) Bill, 2015, drafted by the Union Ministry of Home Affairs. However, the Bill was never tabled in Parliament. The following are some of the amendments suggested in the draft:
- Section 4A must be inserted, which provides for shifting of the burden of proof on the accused.
- Section 4B must be inserted, which holds the leaders or office bearers of the organisation liable for the damages.
- Section 4C must be inserted, which provides for convicting abettors.
- Finally, Section 4D must be inserted, which provides that the office in charge of a police station must arrange videography of the event if there is reason to suspect that it might turn violent. The officer must also deposit soft copies of the videography and record the statement of the videographer before the Sub-Divisional Magistrate or the Executive Magistrate. The Sub-Divisional Magistrate or the Executive Magistrate may also entrust the police officer with the videography.
The Punjab Government in 2017 had taken the guidelines into consideration while amending its Punjab Prevention of Damage to Public and Private Property Act, 2014. It also provided for the payment of damages for the destruction of public or private property.
Related case laws
In the case of Kodungallur Film Society & Anr. vs. Union of India & Ors. (2018), the petitioners sought the Supreme Court to issue directives to the Union and State Government for implementing the guidelines. The Supreme Court bench issued some recommendations which are supplementary to the guidelines in Re: Destruction of Public and Private Properties. The guidelines were related to compensation, the responsibility of police officers, and preventive measures The Court also issued directives for implementing the recommendations to the Union and State governments.
Though the Re: Destruction of Public and Private Properties guidelines are very comprehensive, it is very difficult in implementing the guidelines and fulfilling the objectives. In most instances, it is difficult to identify the leaders or organisers behind an action. In the case of Koshy Jacob vs. Union Of India (2017), the petitioner claimed he was stuck on the road for more than 12 hours due to agitation. He was not granted any compensation since the organisers of the agitation were not present before the Court. However, the Court reiterated that the law must be amended to include all the guidelines issued by the Court.
The guidelines and recommendations by the committees and the courts should be incorporated into the Prevention of Damage to Public Property Act urgently. The draft PDPP (Amendment) Bill, 2015 must be aligned with the Supreme Court guidelines and introduced in the Parliament. As instances of political violence never seem to stop, it is crucial for the law to be more comprehensive to protect properties from being vandalised. It is necessary to consider the nature and behaviour of crowds before drafting measures to counteract violence. For instance, when the police show aggression towards protesters, it is more likely to aggravate and prolong the protests.
Moreover, the legislators must ensure that the measures do not go against the freedom of speech and expression of the citizens, as guaranteed under Article 19 of the Constitution. The right to form a peaceful assembly is an integral part of Article 19. The legislators must keep in mind that there should be a balance between the need to protect properties from vandalism and the freedom of speech and expression.
To conclude, the guidelines issued by the Supreme Court, in this case, must be incorporated into the legislations of the respective governments. However, it is also important to protect the freedom of the citizens to protest and express their criticism regarding certain government policies as a democratic country. The laws must strike a balance between protecting properties from destruction and preserving the democratic values adopted by the Indian Constitution.
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