In the recent past, India has witnessed a litany of violent protests that have caused a sizable amount of damage to public and private property. Tellingly, these protests have manifested the callous nature of protestors and the law enforcement officers governing them, and have subsequently thrown light on the lack of stringent laws that make it a strenuous task for the government officials to penalise the malefactors and claim damages from the same. The states of Karnataka and Uttar Pradesh underwent tumultuous agitations that led to a colossal damage to public property. Consequently, the respective state governments were under an obligation to act expeditiously and recover damages from the offenders. A recent investigation undertaken by the Indian Express shows the glaring misuse of authority on part of the State Government and how it had (mis)interpreted the age-old civil law principle of joint and several liability in the determination of damages and recovery of the money from the alleged culprits, thereby raising concerning questions on the adoption of due process. In this article, we analyse the constitutionality of the process or modus operandi adopted by the two governments to recover the damages and subsequently ascertain the pressing need for stricter and more comprehensive laws.
The mechanism of attaching and seizing the properties of the offenders finds its traces in the colonial era, where a defendant’s property was likely to be seized and sold if he fails to comply with the Courts’ orders. This practice has crept into modern-day India and has taken shelter in the processes initiated for the recovery of damages by attaching the property of the accused for destroying public and private property. After the enactment of the Citizenship Amendment Act, 2020, violent protests fanned out in all corners of the country. The first state to take prompt and strict action against the unwarranted vandalism was Uttar Pradesh. According to the Indian Express investigation, Chief Minister Yogi Adityanath sent roughly 500 notices to the alleged people, asking them to pay a whopping total of Rs. 3.35 crore as compensation for the destruction of public properties in the State. Subsequently, the Uttar Pradesh government started sealing the properties of those who were involved in the widespread ruination. Taking into consideration the catastrophic outcome of the protests, it was needless to say that there was an imperative need for strict punitive action by the government that would create deterrence among the prospective protestors and, subsequently, penalise those offenders who thought of escaping scot-free. However, serious doubts were expressed over the correctness of Uttar Pradesh’s punitive action. Even though the action tended to find legitimacy using the case of Mohammed Shujauddin v. State of Uttar Pradesh as precedence, it completely misread and overlooked some pertinent points of the dictum given by the Single Judge Bench of Justice Sudhir Agarwal of the Allahabad High Court.
The action took no cognisance of the point (iv) of the guidelines prescribed by the Bench which opined that only after giving an opportunity of hearing the concerned persons, can the Competent Authority take any punitive action. These half-initiated proceedings of the suspects not only went against the very precedent which the Uttar Pradesh government used as precedence but also went in flagrant contravention of the indispensable principle of Criminal Law of “innocent until proven guilty”. Moreover, the Government solely and blindly relied on CCTV cameras and hearsay pieces of evidence. It gave the accused no opportunity of justification before sending notices for recovery of damages and seizing their respective properties. To add to the bargain, the authenticity and accuracy of the CCTV cameras, videos, and images available were not cross-checked before issuing notices.
Equally incompatible with constitutional ideals was the procedure adopted while tendering the suspension. A fair hearing is an elemental prong of natural justice and the failure on part of the Government to provide an opportunity to the alleged persons to present their case and be heard, let alone provide a fair hearing, strikes at the very heart of the principle of natural justice. To add to the bargain, the adoption of a reasonable procedure was held integral in guaranteeing the fundamental right under Article 21 in the Maneka Gandhi case. Undemocratically seizing the property of an accused without giving a reasonable opportunity to be heard and without giving cogent reasons and evidence that could legitimise such a seizure cannot be recorded as a reasonable procedure that is in consonance with the Maneka Gandhi dictum. Constitutionally, the procedure resorted to is manifestly unconstitutional as it not only oversteps the principle of natural justice but is also against the very letter of Article 21.
Karnataka, in its capital city, also faced similar violence that called for strict and expeditious action to be taken against the rioters responsible for destruction and damage of public property. In contrast to the UP Hoardings Case, where the Uttar Pradesh government put banners of the accused, the Karnataka High Court indefinitely refused to entertain a plea that pleaded to give wide publicity to the names of the accused persons arrested in connection with the Bangalore Riots. Consequently, following the dictum and guidelines given in In Re: Destruction of Public & Private Properties vs State of Andhra Pradesh and Ors it appointed one of its former judges, Justice HM Kempana, as the Claims Commissioner to analyse and assess the damages liable to be paid by the guilty rioters. The Court also issued further guidelines and directions to the Claims Commissioner who, inter alia, took over the task of assessment of damages, and analysed the same through witnesses and evidence (existing videos, recordings, images, etc) available.
In the past, the Courts have taken cognisance of a litany of protests that have inadvertently damaged public and private property. Unfortunately, they have lacked credibility and strictness in ascertaining a sophisticated process for damage recovery. Umpteen protests have ravaged India and have caused irreparable damage to life and property, yet there has been little or, in most cases, no attempts at recovery. The most famous instance is the rampage caused by the followers of Dera Sacha Sauda on account of the arrest of the spiritual leader Gurmeet Ram Rahim Singh. The riots in opposition to his arrest and conviction caused widespread damage to property, of which the Punjab and Haryana Court took notice. Subsequently, the Court ruled that all the damages shall be extracted from Dera. Unfortunately, no recovery has been made till date. The Jat stir in Haryana caused damage of around 1800-2000 crore, of which no recovery was initiated. Gujarat, in the Patidar outpour, underwent unrivalled vandalism in 2015, when the protestors torched around 660 government vehicles and innumerable public buildings. In the same vein, Kerala formed the fulcrum of the Sabrimala protests which led to the scorching of 49 buses owned and managed by the State Government. The controversy around the release of the movie Padmavat caused widespread uproar and resentment in Rajasthan, which also witnessed mass protests during the Gujjar community’s quota stir. Unfortunately, in all these cases, neither was any substantial punitive action taken against the protestors, nor were there any meaningful attempts made for damage recovery.
The Dichotomy of the Precedents
After a perusal of the In Re: Destruction of Public & Private Properties vs. State of Andhra Pradesh and Ors case of 2009, and the guidelines issued by the Bench of Justice Sudhir Agarwal in Mohammed Shujauddin v. State of Uttar Pradesh, there appears to be an evident dichotomy that has created substantial confusion in the minds of public authorities while taking cognisance of recovering damages.
The 2009 Supreme Court guidelines emanated from the suo motu proceedings initiated in 2007 after the rampant destruction of public and private properties in the name of hartals, agitations, and bandhs. In the present case, the Supreme Court put the onus of appointing the Claims Commissioner on the Courts itself. If there is the involvement of a single State, then the High Courts are authorised to take cognisance. However, if the destruction involves two or more States, then the Supreme Court is liable to take cognisance and appoint a Claims Commissioner.
However, the Allahabad High Court judgement in Mohammed Shujauddin v. State of Uttar Pradesh was poles asunder. It bestowed the State Government with the responsibility of appointing a person an Officer not below the rank of an Additional District Magistrate to assess the damage caused after the owner of the damaged property approached the Competent Authority for reimbursement. In the present case, the Allahabad High Court, going against the dictum of the 2009 judgement of the Supreme Court, made the state authorities responsible for looking after the damages. In this regard, the Indian Express revealed “how the state administration cited a High Court ruling that went against an earlier Supreme Court verdict and rushed through an ordinance to play not only prosecutor but judge and jury as well. It gave itself sweeping powers to assess damage, estimate cost, bring charges, and fix liability with many of the accused even getting a hearing”
Such an ambiguity towards ascertaining what procedure has to be established to recover damages and who is the competent authority that is liable to take cognisance can also be attributed to the abysmal and outdated laws that do not specify what method a competent body should adopt for damage recovery. The Damage to Public Property Act, 1984 is a legislation that was enacted to delve into damage caused to public property during rioting, violent protests, and arson. However, the fact that the legislation prescribes only a jail term and fine to the convict, without ascertaining the damage recovery mechanism, makes it half-hearted in nature, and subsequently, nothing but a toothless tiger in the current times.
Protests in India: The Past and the Way Ahead
Read more about right to protest here.
India’s history of public protests against anti-Indian legislation finds its roots in the protests of colonial India initiated and led by Mahatma Gandhi. Be it the Civil Disobedience March of 1930, or the Quit India Movement of 1942, Gandhi played an indispensable role in pressurising the colonial rulers to quit without resorting to violence. However, as years passed by, his legacy of protesting through non-violence transgressed and intensified into outbursts of what we today call hartals, bandhs, stone-pelting protests, and riots. This has become a major cause of concern for public tranquility in contemporary India. Consequently, this has given food for thought on the urgent need of bringing an amendment in The Damage to Public Property Act, 1984, to make it stricter and more compendious. An amendment that prescribes a procedure of damage recovery and ascribes which public body will take over the administration of the procedure is the need of the hour.
Subsequently, there is a need to make public places and roads more technologically advanced. A reliable facial recognition mechanism that correctly and accurately captures and records protest-hit areas is also called for. However, in the absence of a data protection law, it is imperative to concoct a sophisticated mechanism that assists the government bodies in recognising the protestors and holds them accountable without infringing their Right to Privacy. India is all set to adopt the world’s largest government-operated facial recognition mechanism called the Automated Facial Recognition System (AFRS). It would help in “automatic identification and verification of persons from digital images, photos, digital sketches, video frames, and video sources by comparison of selected facial features of the image from an already existing image database.” This is also done with a view of modernising the police forces in terms of information gathering, criminal identification, verification, criminal dossier maintenance, and its dissemination among various police organisations and units across the country.
An integrated and constitutionally founded facial recognition, synergised with a broad-gauged amendment in The Damage to Public Property Act will go a long way in gripping violent dissents and will substantially facelift the policing and public damage administration apparatus, which currently, is both, half-hearted and shambolic.
This is a guest post by Saahas Arora. He is a student of law at ILS Law College, Pune.