Not many are aware that in 2009, the Supreme Court had already laid down detailed guidelines in the matter of large-scale destruction of public and private properties in the name of agitations, bandhs, hartals, etc. Unfortunately, it appears that nobody bothers about their implementation and people have already mostly forgotten them, including the law enforcement agencies. I am writing this in view of the reports in the media that the Supreme Court today (24 February 2016) voiced concern over the damage to public property during agitations, saying that the country cannot be held to ransom and that it would lay down parameters for fixing accountability for the losses. Recent incidents of huge damage to property during agitations by Jats in Haryana and Patels in Gujarat, for seeking reservations in jobs, are quite fresh in mind. In the recent Jat agitation, reports have suggested that the loss may be tune of Rs. 20000 crore and some reports have even suggested the loss being to the tune of Rs. 34000 crore. One wonders what is being done to recover such huge losses from those responsible for causing them, as directed by the Supreme Court.
Let me point out that certain very important binding guidelines were issued by a 3-judge bench of the Supreme Court (comprising of Justices Dr. Arijit Pasayat, L.S. Panta and P. Sathasivam) on 16 April 2009 in the case of Destruction of Public & Private Properties v. State of A.P., 2009 (5) SCC 212, by taking suo motu notice of various instances of large-scale destruction of public and private properties in the name of agitations, bandhs, hartals, etc. As per the direction issued by the Supreme Court, these guidelines became operational and will remain in force till appropriate legislation is put in place.
In the said case, to effectuate the modalities for preventive action and adding teeth to the enquiry / investigation, the following guidelines were issued:
“As soon as there is a demonstration organised:
(I) The organiser 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 organisers to ensure a peaceful march with marshals at each relevant junction;
(IV) The police and the State Government shall ensure videography of such protests to the maximum extent possible;
(V) The person-in-charge to supervise the demonstration shall be 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 by the police; and
(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 the Supreme Court as the case may be for the Court in question to take suo motu action.”
To assess and determine the liability for damages arising out of various agitations, the Supreme Court issued the following guidelines in the aforesaid case:
“(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 the 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 the 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 the organisers of the event giving rise to the liability—to be shared, as finally determined by the High Court or the 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; and
(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 the Supreme Court which will determine the liability after hearing the parties.”
The Supreme Court also made the following recommendations in the said case:
“(i) The Prevention of Damage to Public Property Act, 1984 (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.
(ii) The PDPP Act to contain provision to make the leaders of the organisation, which calls the direct action, guilty of abetment of the offence.
(iii) The PDPP Act to contain a provision for rebuttable presumption.
(iv) Enable the police officers to arrange videography of the activities damaging public property.”
There is an urgent need to make use of the aforesaid guidelines issued by the Supreme Court, that have the force of law, for effectively preventing and controlling the large-scale damages caused during various agitations to the public and private property and hold the organisers responsible therefor in criminal prosecutions as well as in compensation recovery proceedings.