10 Oct 2009

Law against public rioting: A quagmire !!!

Disapprove of the proposed increased in prices of gas; devastate the Government's office. Troubled over a blue-line hitting a passer-by, burn down the damned bus and other ones too. The policy of creating public appeasement (by the public itself) by destruction of public property (how ironical though) has come to terms in India as a regular feature thanks to 24 hours news reporting. Perhaps the law enforcement authorities -  for want of deterrent action against the violators - are equally at fault for allowing the menace to go on and on and be silent witnesses to the waste of exchequer.

Despite there being a specific law to cater to this issue, one which has already passed twenty-five years of its promulgation, the civic sense is to be restored. Passed by the Parliament in 1984, the Prevention of Damage to Public Property Act does not seem to have been implemented in its full rigour of else the ground-realities would certainly have been different. Having a coverage over all public properties i.e. “property, whether immovable or movable (including any machinery) which is owned by, or in the possession of, or under the control of” the Central Government, State Governments, local authorities, government companies etc., the Act punishes any act of mischief in respect of a public property where ‘mischief’ is defined to mean;
‘destruction of any property, or any such change in any property or in a situation thereof as destroys or diminishes its value or utility or affects it injuriously’ by one ‘with intent to cause, or knowledge that he is likely to cause, wrongful loss or damage to the public or any person’.
For mischievous act leading to ordinary damage, the Act prescribes a punishment of five years along with a fine. However damages to public property caused by fire or by explosives carry a punishment of ‘rigorous imprisonment for a term which shall not be less than one year, but which may extend to ten years and with fine’. Further, the law also provides that one would not get a bail, if accused of such offences, unless the prosecution has got a chance to oppose the bail. Even more, the law itself states that the punishments under this law are only in addition to (and not substituting) the punishment provided for under any other law towards this effect.

Nonetheless, noting the rampant destruction of public property notwithstanding the law and in particular the incident emanating from the Gujjar agitation leading to destruction of Delhi-Jaipur roads, the Supreme Court initiated suo-motu action, rattling the authorities for inaction towards this regard. It its recent decision the Supreme Court has approved and adopted the recommendations of two Committees appointed to this regard to ensure that in future those who carry out destruction of public property are meted with.

Taking cue from the Justice K.T. Thomas Committee the Supreme Court, to ensure that all such acts of rioting are properly accounted for, declared the following guidelines to be carried out by the authorities;
As soon as there is a demonstration organized:
(I) The organizer shall meet the police to review and revise the route to be taken and to lay down conditions for a peaceful march or protest;
(II) All weapons, including knives, lathis and the like shall be prohibited;
(III) An undertaking is to be provided by the organizers to ensure a peaceful march with marshals at each relevant junction;
(IV) The police and State Government shall ensure videograph of such protests to the maximum extent possible;
(V) The person in charge to supervise the demonstration shall be the SP (if the situation is confined to the district) and the highest police officer in the State, where the situation stretches beyond one district;
(VI) In the event that demonstrations turn violent, the officer-in-charge shall ensure that the events are videographed through private operators and also request such further information from the media and others on the incidents in question.
(VII) The police shall immediately inform the State Government with reports on the events, including damage, if any, caused.
(VIII) The State Government shall prepare a report on the police reports and other information that may be available to it and shall file a petition including its report in the High Court or Supreme Court as the case may be for the Court in question to take suo motu action.
The Supreme Court also noted recommendations of the Committee headed by Mr. F.S. Nariman relating to the public destruction being considered as tortious conduct as under;
The basic principles as suggested by Nariman Committee are as follows which we find to be appropriate:
(1) The basic principle for measure of damages in torts (i.e. wrongs) in property is that there should be `restituto in interregnum' which conveys the idea of "making whole".
(2) Where any injury to property is to be compensated by damages, in settling the sum of money to be given for reparation by way of damages the Court should as nearly as possible get at that sum of money which will put the party who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.
(3) In this branch of the law, the principle of restitution in interregnum has been described as the "dominant" rule of law. Subsidiary rules can only be justified if they give effect to that rule.
In actions in tort where damages are at large i.e. not limited to the pecuniary loss that can be specifically proved, the Court may also take into account the defendant's motives, conduct and manner of committing the tort, and where these have aggravated the plaintiff's damage e.g. by injuring his proper feelings of dignity, safety and pride - aggravated damages may be awarded.
Thereon, on the basis of these recommendations, the Supreme Court further passed the following guidelines to be observed by the State authorities;
In the absence of legislation the following guidelines are to be adopted to assess damages:
(I) Wherever a mass destruction to property takes place due to protests or thereof, the High Court may issue suo motu action and set up a machinery to investigate the damage caused and to award compensation related thereto.
(II) Where there is more than one state involved, such action may be taken by the Supreme Court.
(III) In each case, the High Court or Supreme Court, as the case may be, appoint a sitting or retired High Court judge or a sitting or retired District judge as a Claims Commissioner to estimate the damages and investigate liability.
(IV) An Assessor may be appointed to assist the Claims Commissioner.
(V) The Claims Commissioner and the Assessor may seek instructions from the High Court or Supreme Court as the case may be, to summon the existing video or other recordings from private and public sources to pinpoint the damage and establish nexus with the perpetrators of the damage.
(VI) The principles of absolute liability shall apply once the nexus with the event that precipitated the damage is established.
(VII) The liability will be borne by the actual perpetrators of the crime as well as organisers of the event giving rise to the liability - to be shared, as finally determined by the High Court or Supreme Court as the case may be.
(VIII) Exemplary damages may be awarded to an extent not greater than twice the amount of the damages liable to be paid.
(IX) Damages shall be assessed for:
(a) damages to public property;
(b) damages to private property;
(c) damages causing injury or death to a person or persons;
(d) Cost of the actions by the authorities and police to take preventive and other actions
(X) The Claims Commissioner will make a report to the High Court or Supreme Court which will determine the liability after hearing the parties.
Thus the Supreme Court has not only fixed the responsibility on the State authorities to bring the violators of public property to terms, it has also taken upon itself and the High Court the responsibility to carry out the task of overseeing that such damages are properly compensated by the violators.

The Bench justified its action of formulating guidelines to this effect by referring to the earlier decisions of the Court wherein directions had been given by the Supreme Court in the absence of a law to the effect and also to effectuate the considerations which in its opinions were necessary to ensure the effective functioning of the legal system in the country. The Bench noted that “the present case is one in which guidelines are necessary: (i) to the police to enforce statutory duties and (ii) to create a special purpose vehicle in respect of damages for riot cases.” However, calling upon the legislature to take on the task, the Bench also noted that the “guidelines shall cease to be operative as and when appropriate legislation consistent with the guidelines indicated above are put in place and/or any fast track mechanism is created by Statute(s).”

One can only hope that given this strict regime drawn by the apex court of the country, public rioting would atleast diminish if not cease. Have a look at the comprehensive decision. 

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