The Delhi Police has written a letter to the Delhi High Court seeking the appointment of a Claims Commissioner to assess the damage caused to public property during the Anti-Citizenship Amendment Act (Anti-CAA) protest in the city.
- In Uttar Pradesh, which witnessed violence during the anti-Citizenship Amendment Act protests, the administration has issued notices to over 130 people accused of rioting to pay up around Rs 50 lakh in damages.
Cases of damage to property
- According to the latest National Crime Records Bureau (NCRB) data, there were 14,876 cases of damage to public property pending before various courts in 2017.
- Haryana, UP and Tamil Nadu led the list with the highest number of such cases — together amounting to 6,300 offences for damage to public property.
The loss to property in recent protests
- 2016: Cauvery water dispute violence, an estimated loss of Rs 20,000 crore to Karnataka and Tamil Nadu
- 2016: Jat quota protests cost Rs 34,000 crore loss to northern states
- 2017: Dera Saccha Sauda violence cost the Haryana exchequer Rs 126 crore
Constitutional & Statutory provisions
- Right to protest: Article 19 of the Indian Constitution protects freedom of speech, allowing citizens, for one, the right “to assemble peaceably and without arms.” This includes the right to form associations, hold meetings, and come out in processions.
- The Constitutional right to assembly is, however, subject to certain regulations contained in a number of laws, such as the Indian Penal Code, the Criminal Procedure Code, and the Police Act of 1861.
- With this, the Constitution seeks a balance between the freedom of speech guaranteed in Article 19 (1) (b) and social order as defined in Article 19 (3).
- Fundamental Duty: Resorting to violence during a protest is a violation of a key fundamental duty of citizens. Enumerated in Article 51A, the Constitution makes it a fundamental duty of every citizen "to safeguard public property and to abjure violence".
- Right to property: The constitution says that under Article 300(a) of the constitution, there cannot be a deprivation of property except in accordance with the law.
- Article 246 of the Constitution places ‘public order’ and ‘police’ under the jurisdiction of the state.
- Prevention of Damage to Public Property Act, 1984: It punishes anyone “who commits mischief by doing any act in respect of any public property” with a jail term of up to five years and a fine or both. Provisions of this law can be coupled with those under the Indian Penal Code.
- Public property under this Act includes
- any building, installation or other property used in connection with the production,
- distribution or supply of water, light, power or energy;
- any oil installation; any sewage works; any mine or factory;
- any means of public transportation or of telecommunications, or
- any building, installation or other property used in connection therewith”.
- However, the Supreme Court in several cases has asked the government of the day to frame adequate laws to fix accountability for the damage done to public property during protests.
What does the law say regarding recovery of damages to public property?
- At present, there is no central legislation governing the recovery of damages except for the Supreme Court-issued guidelines of 2009, which the Centre has instructed all state governments to implement in letter and spirit.
- The law concerning the property damage is Prevention of Damage to Public Property Act (PDPP Act), 1984, but at present, it only has provisions for imprisonment and fine.
- In 2007, the Supreme Court took note of instances of mass violence and resultant damage to public property across the country. It formed two committees under former judge KT Thomas and jurist Fali S Nariman to recommend legal changes that could help handle such situations.
Thomas Committee’s recommendations
- It recommended reversing the burden of proof against protesters.
- The PDPP Act must be so amended as to incorporate a rebuttable presumption (after the prosecution established the two facets) that the accused is guilty of the offence.
- The PDPP Act should contain a provision to make the leaders of the organisation, which calls the direct action, guilty of abetment of the offence.
- The PDPP Act must be amended to incorporate a rebuttable presumption that the accused is guilty of the offence after the prosecution proves that public property has been damaged in a direct action called by any organization.
- Enable the police officers to arrange videography of the activities damaging public property.
The Nariman Committee’s recommendations dealt with extracting damages for destruction. Accepting the recommendations, the court said the rioters would be made strictly liable for the damage, and compensation would be collected to “make good” the damage.
Supreme Court guidelines: In 2009, in the case of In Re: Destruction of Public & Private Properties v State of AP and Ors, based on the recommendations of the two committees, the Supreme Court in 2009 issued the following guidelines:
- It said in the absence of state legislation to cover such violence, the High Court may take cognisance of incidents of mass damage to public property on its own and set up a machinery to investigate and award compensation.
- This can happen in two ways: The court can take up the matter if the state fails to intervene, or it can pursue the matter if the state government approaches it with a report on the damages in the form of a petition.
- Appointment of “claims commissioner: In every such case, the high court or the Supreme Court is required to appoint a sitting or retired high court judge or district judge as a “claims commissioner” to estimate the damages and probe liability. An assessor can also be appointed to assist the claims commissioner.
- The claims commissioner could ask for video recordings from private or public sources to examine the damage and to identify the perpetrators.
- Once the liability is assessed, it will be borne by the perpetrators of the violence and the organisers of the event.
- The liability will be borne by the actual perpetrators of the crime as well as organisers. Their shares would be decided by the court.
- Exemplary damages should not be greater than twice the amount of the damages liable to be paid.
- Damages should be assessed for destruction to public or private property, injury or death and cost of the actions by the authorities and police to prevent and contain the violence.
- The Claims Commissioner will make a report to the High Court or Supreme Court which will determine the liability after hearing the parties.
- For violence within a state: the High Court has a crucial role.
- For inter-state violence: SC has a crucial role in the assessment of damages and recovery for compensation.
- The Supreme Court did say that it was leaving the matter to the authorities “to take effective steps for their implementation.” However, such steps have to be in consonance with the spirit of the guidelines.
The court guidelines are applicable only in the absence of law.
- PDPP amendments by States:
- Punjab had in 2017 amended its PDPP Act and notified that anyone found guilty of the damaging act shall be also liable to make a payment of an amount equivalent to the loss caused to the public or private property as decided by the competent authority.
- In the erstwhile state of J&K, a proposed amendment to The Jammu and Kashmir PDPP Act was referred to a select committee of the then Assembly on February 10, 2018, following opposition protests against its “draconian” provisions.
- Draft PDPP Act (Amendment) Bill, 2015: In May 2015, the Union Ministry of Home Affairs did, indeed, invite public suggestions on a draft PDPP Act (Amendment) Bill, 2015.
- The draft law had a provision on the recovery of damages, with a fine equivalent to the market value of the damaged public property, and proposed to hold office bearers of the organisation that had organised the demonstration guilty of abetment.
- However, the Bill was never tabled in Parliament.
- Kodungallur Film Society, (Padmavat Movie protest) case: In October 2018, the Supreme Court ordered that “a person arrested for either committing or initiating, promoting, instigating or in any way causing to occur any act of violence which results in loss of life or damage to property may be granted conditional bail upon depositing the quantified loss caused due to such violence or furnishing security for such quantified loss”.
- If the loss is yet to be quantified, the apex court said, the judge hearing the bail application may quantify the number of tentative damages which will remain subject to final determination by the appropriate authority”.
- When any act of violence results in damage to property, the concerned police officials should file FIRs and complete the investigation as far as possible within the statutory period and submit a report in that regard.
- In its verdict in Koshy Jacob vs Union Of India, the Supreme Court reiterated that the law needed to be updated — but it did not grant the petitioner any compensation since the organisers of the protest were not before the court.
Concerns
- The law only provides for individual liability for causing damage: The 1984 Act relating to damage of public property does not impose any form of collective liability on groups which may engage in such actions.
- The issue of fixing accountability for the damages caused to public property: While Supreme Court guidelines exist against the destruction of property, they affix liability on the leader who gave the call to protest.
- There is no identifiable leader/organiser: Identification of protesters has remained a challenge and resulted in a low conviction rate – 29.8% – in cases related to the destruction of public property.
- Violent means to deal with violent civil protests: The protests received a greater impetus after the violent police crackdown at the Jamia Millia Islamia University and Aligarh Muslim University (AMU). The government sought to deal with them in a coercive manner by imposing Section 144, partially shutting down mobile services and metro stations in Delhi.
- The state cannot remain silent to wanton wrong: The issue is that the law is embodied across enactments and judicial precedent and the government can derive legitimacy from the law to do something which is fundamentally correct.
- Confiscation of property is normally after a criminal trial: The Uttar Pradesh government has asked alleged vandals, even before their guilt has been proven, to pay damages or face the seizure of their properties. The notices served by the Uttar Pradesh administration on people cite the 2010 judgement of the Allahabad High Court in Mohammad Shajauddin vs the State of UP as their justification.
- Lacking due process of law: UP government’s acceptance of ₹6.27 lakh from the Muslim community as “compensation” for damages caused to public property during anti-CAA protests lacks due process.
Mohammad Shajauddin vs the State of UP: Allahabad High Court judgement
- In its order, the Allahabad High Court said that when public property is damaged following a call for agitation by a political party or a politician, the police has to register a report citing the party or the person by name.
- Then, the High Court said a competent authority “nominated” by the government has to assess the damage and receive claims from the public who have faced loses due to the violence.
- Thus, if the persons responsible for the damage fail to pay up, the amount shall be collected as arrears of land revenue.
- The court also ordered the formation of a high level committee to oversee such cases.
Concerns: Many of the agitations and protests which turn violent are political in nature. This means there is every chance that the ruling party could go after its political opponents or others opposed to it to settle scores. The High Court order, by vesting powers in the government without judicial oversight, seems to have overlooked this concern.
- The contradiction between the judgements of the Supreme Court and the High Court: The High Court guidelines put the onus of action on the government. The Supreme Court wanted the High Court to hear the parties after the claims commissioner filed a report on the damages and then assess them to determine the liability of the accused.
- Criminalizing the Right to Protest: We already have laws such as the AFSPA and Public Safety Act, and the confidence level of the people in the concerned states is virtually at its lowest ebb. You cannot build confidence by bringing in more such laws. Dissent has to be protected, and not prosecuted.
Way forward:
- Amending the law: The draft PDPP Act (Amendment) Bill, 2015 should be realigned with the present scenario based on Supreme Court guidelines.
- Reexamining Crowd Control’s Methods and Tactics: While the policy is being drafted, it is important to keep in mind the ground realities of different protests and devise strategies accordingly.
- At a student protest, for example, security personnel must show utmost restraint and maintain composure during violent disturbances as police reaction to any provocation may easily cross the line and become excessive and in turn, result in protesters turning more violent.
- During a political agitation, police aggression towards demonstrating citizens, or a clash taking a violent turn, could simply prolong the protest.
- The balance between ‘Right to protests’ and the fundamental duty of protecting public property: There is a need for inculcating consciousness regarding fundamental duties in citizens.
The right of citizens to protest and gather peacefully without arms is a fundamental aspect of India’s democracy. While it is also the right of the government to protect civilians from violent protests, certain essential principles need to be kept in mind.
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