IN RE- DESTRUCTION OF PUBLIC & PRIVATE PROPERTIES v. STATE OF A.P. AND ORS

Citation: [2009] 6 S.C.R. 439

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, LOKESHWAR SINGH PANTA, P. SATHASIVAM

Case summary

IN RE- DESTRUCTION OF PUBLIC & PRIVATE PROPERTIES v. STATE OF A.P. AND ORS.pdf

Judgment text

• [2009] 6 S. C. R. 439 IN RE: DESTRUCTION OF PUBLIC & PRIVATE PROPERTIES STATE OF A. P. AND ORS. - RESPONDENTS (Writ Petition (CRL. ) NO. 77 of 2007) APRIL 16, 2009 [DR. ARIJIT PASAYAT, LOKESHWAR SINGH PANTA AND P. SATHASIVAM, JJ. ] Constitution of India, 1950 - Art. 32 - Power of Court to lay down guidelines - Destruction of property in name of agitations, bandhs and harta. ls - Suo motu proceedings initiated by this Court - Two Committees appointed; one headed by a retired Judge of this Court Justice K. T. Thomas and the other headed by Mr. F. S. Nariman, a senior lawyer- D .

Held: Recommendations made by the Committees· having approval of this Court to become immediately operative as guidelines - Guidelines i) to police to enforce statutory duties and ii) to create a special purpose vehicle in respect of damages for riot cases - The guidelines shall cease to be operative as and when appropriate legislation consistent with the guidelines are put in place and/or any fast track mechanism is created by Statute(s) - Prevention of Damage to Public Property Act, 1984 - Police Act, 1861. Taking a serious note of various instances of large scale destruction of public and private properties in the name of agitations, bandhs, hartals and the like, suo motu proceedings were initiated by this Court. Two Committees were appointed in this regard, one headed by a retired Judge of this Court, Justice K. T. Thomas and the other headed by F. S. Nariman, a senior member of the legal profession.

Disposing of the Writ Petitions on consideration of , the reports submitted by the two Committees, the Court HELD:1. 1. The report submitted by Justice K. T. Thomas Committee has made the following recommendations:(i) The Prevention of Damage to Public 8 Property Act, 1984 (POPP 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 POPP Act to contain -1 provision to make the leaders of the organization; which calls the direct action, guilty of abetment of the offence; (iii) The POPP Act to contain a provision for rebuttable presumption and (iv) Enable the police officers to arrange videography of the activities damaging public property. The recommendations are wholesome and need to be accepted. [Paras 4 and 6] [446-B-D; 450-C] 1. 2.

To effectuate the modalities for preventive action and adding teeth to enquiry/investigation following ·guidelines are to be observed: As soo. n 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; (Ill) 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 by the police; (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. [Para 7] [450-D-H; 451-A-D] -t 2. 1. The basic principles as suggested by Nariman Committee are as follows which are found 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..! 'domiriant" 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 plaintitrs damage e. g. : by injuring his proper feelings of dignity, safety and pride . - aggravated damages may be awarded. Aggravated ~ damages are designed to compensate the plaintiff for wounded feelings-they must be distinguished from exemplary damages· which are punitive in nature and which (under English Law) may be awarded in a limited > category of cases. [Para 9] [453-D-H; 454-A-B] 2. 2.

In the absence of legislation the following guidelines are to be adopted to assess damages: 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; Where there is more than one state involved, such + action may be taken by the Supreme Court;· 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; An Assessor may be appointed to assist the Claims Commissioner; 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; The principles of .... absolute liability shall apply once the nexus with the event that precipitated the damage is established; 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; Exemplary damages may be awarded to an extent not greater than twice the amount of the damages liable to be paid; 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 authoritfes and police to take ' preventive and other actions; The Claims Commissioner will make a report to the High Court or Supreme Court ( ' • which will determine the liability after hearing the parties. [Para 10] [456-B-H; 457-A-D] 3. The recommendations of Justice K. T. Thomas Committee and Mr. F. S. Nariman Committee which have the approval of this Court shall immediately became 8 operative. They shall be operative as guidelines. 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. These guidelines shall cease to be operative as and when appropriate legislation consistent with the guidelines indicated are put in place and/or any fast track mechanism is created by Statute(s).

[Paras 11, 18 and 20] [457-E; 470-C-D, G] Union of India v. Association for Democratic Reforms (2002) 5 SCC 294; Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244; Vishaka v. State of Rajasthan, (1997) 6 SCC 241;. Vineet Narain v. Union of India, (1998) 1 SCC 226; State of W. B. v. Sampat Lal, (1985) 1 SCC 317; K. Veeraswami (1991) 3 SCC 655; Union Carbide Corporation v. Union of India, (1991) 4 SCC 584; Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4 SCC 406; Delhi Development Authority v. Skipper Construction Co. (P) Ltd. , (1996) 4 SCC 622; Dinesh Trivedi,. M. P. v. Union of India, (1997) 4 SCC 306; Common Cause v. Union of India, AIR 1996 SC 929; Supreme Court Advocates-on-Record Association v. Union of India (1993) 4 SCC 441; Comptroller and Auditor General of India v. K S. Jagannathan AIR 1987 SC 537 and D. K. Basu v. State of West Bengal (1997) 1 SCC 416, referred to.

Case Law Reference: (2002) s sec 294 referred to Para 12 (1984) 2 sec 244 referred to Para 13 .. ) (1997) s sec 241 referred to Para 13 '"'-·. (1998) 1 sec 226 referred to Para 13 (1985) 1 sec 317 referred to Para 13 (1991) 3 sec 655 referred to Para 13 (1991) 4 sec 584 referred to Para 13 (1991) 4 sec 406 referred to Para 13 1- (1996) 4 sec 622 referred to Para 13 (1997) 4 sec 306 referred to Para 13 AIR 1996 SC 929 referred to Para 13 (1993) 4 sec 441 referred to Para 13 AIR 1987 SC 537 referred to Para 13 i- (1997) 1 sec 416 referred to Para 13 CRIMINAL APPELLATE JURISDICTION : Writ Petition - (Criminal) No. 77 of 2007. • Under Article 32 of The Constitution of India. WITH . W. P. (Crl,fNo. 73/2007 G. E. Vahanvati (SGI), Dr. Manish Singhvi AAG, (Rajasthan), R. Shunmugasundaram, Rajiv Dhawan (A. C. ), Ashok K. Mahajan, Riku Sharma (for Corporate Law Group), S. R. Hedge, Rohen Singh, Nishant Mishra, Amit Kr. Chawla, H. Wahi, Pinky Behra, K.

Enatoli Serna, Somanath Padhan, Mamta Tushar K. Nobin Singh, Krishan Kumar, Subhash Kaushik, Sadhna Sandhu, D. S. Mehra, Aruneshwar Gupta, Shiv Pujan Singh, Avijit Bhattacharjee, S. Kundu, Gopal Singh, Manish Kumar, Naresh K. Sharma, Kuldip Singh, R. K. Pandey, Anil Shrivastava, Ritu Raj, K. N. Madhu Soodhanan, R. Sathish, Aruna Mathur. V. Dubey (for Arputham, Aruna & Co. }, Ranjan Mukherjee, V. G. Pragasam, S. J. Aristotle, Praburama Subramanian, Milind Kumar, D. Bharathi Reddy, Khwairakpam Nobin Singh, Vibha Datta Makhija, Ravindrc;i Keshavrao Adsure, S. Thananjayan, Ajay Pal, S. R. Hedge, G. Prakash, A. Subhashini, SWA Qadri, Anil Katiyar, D. S. Mehra, Vanita, Shail Kr. Dwivedi, Gunnam Venkateswara Rao, Vandana Mishra, A. K. Jha and M. K. Jha for the appearing parties. The Judgment of the Court was delivered by DR. ARIJIT PASAYAT, J. 1.

Taking a serious note of· various instances where there was large scale destruction of public and private properties in the name of agitations, bandhs, hartals and the like, suo motu proceedings were initiated by Bench of this Court on 5. 6. 2007. Dr. Rajiv Dhawan, Senior counsel of this Court agreed to act as Amicus Curiae. After perusing various reports filed, two Committees were appointed; one headed by a retired Judge of this Court Justice K. T. Thomas. The other members of this Committee were Mr. K. Parasaran, Senior Member of the legal profession, Dr. R. K. Raghvan, Ex-Director of CBI, and Mr. G. E. Vahanavati, the Solicitor General of India and an officer not below the rank of Additional Secretary of Ministry of Home Affairs and the Secretary of Department of Law and Justice, Government of India. The Other Committee was headed by Mr. F. S. Nariman, t a Senior Member of the Legal Profession.

The other members of the Committee were the Editor-in-Chief of the Indian Express, · the Times of India and Dainik Jagaran, Mr. Pranay Roy of NDTV and an officer not below the rank of Additional Secretary of Ministry of Home Affairs, Information and Broadcasting and Secretary, Department of Law and Justice, Government of India, Mr. G. E. Vahanavati, Solicitor General and learned Amicus Curiae. 2. Two reports have been submitted by the Committees. The matter was heard at length. The recommendations of the Committees headed by Justice K. T. Thomas and Mr. F. S. Nariman have been considered. • 3. Certain suggested guidelines have also been submitted by learned Amicus Curiae. 4. The report submitted by Justice K. T. Thomas Committee has made the following recommendations: (i) The POPP Act must be so amended as to incorporate a rebuttable presumption (after the prosecution established the two facets) that the i accused is guilty of the offence.

• (ii) The POPP Act to contain provision to make the leaders of the organization, which calls the direct action, guilty of abetment of the offence. (iii) The POPP Act to contain a provision for rebuttable presumption. 0 (iv) Enable the police officers to arrange videography of the activities damaging public property. 5. The recommendations have been made on the basis of the following conclusions after taking into consideration the materials. In respect of (i) "According to this Committee the prosecution should be required to prove, first that public property has been damaged in a direct action called by an organization and that the accused also participated in such direct action. From that stage the burden can be shifted to the accused to prove his innocence.

Hence we are of the view that in situations where prosecution succeeds in proving that public property has been damaged in direct actions in which accused also participated, the court should be given the power to draw a presumption that the accused is guilty of destroying public property and that it is open to the accused to rebut such presumption. The POPP Act may be amended to contain provisions to that effect. In respect of (ii) Next we considered how far the leaders of the organizations can also be caught and brought to trial, when public property is damaged in the direct actions called at the behest of such organizations. Destruction of public property has become so rampant during such direct actions called by organizations.

In almost all such cases the top leaders of such organisations who really iflstigate such direct actions will keep themselves in the background and only the ordinary or common members or grass root level followers of the organisation would directly participate in such direct actions and they alone would be vulnerable to prosecution proceedings. In many such cases, the leaders would really be the main offenders being the o abettors of the crime. If they are not caught in the dragnet and allowed to be immune from prosecution proceedings, \ such direct actions would continue unabated, if not further ' " escalated, and will remain a constant or recurring affair. Of course, it is normally difficult to prove abetment of the offence with the-help of direct evidence.

This flaw can be remedied to a great extent by making an additional provision in POPP Act to the effect that specified t categories of leaders of the organization which make the call for direct actions resulting in damage to public property, shall be deemed to be guilty of abetment of the offence. At the same time, no innocent person, in spite of his being a leader of the organization shall be made to suffer for the actions done by others. This requires the inclusion of a G. safeguard to protect such innocent leaders. " ~In respect of (iii) "After considering various aspects to this question we decided to recommend that prosecutions should be ~ required to prove (i) that those accused were the leaders or office bearers of the organisation which called out the · direct actions and (ii) that public property has been damaged in or j permitted by law.

Need, therefore, is to develop scientific methods of investigation and train the investigators properly to interrogate to meet the challenge. 34. In addition to the statutory and constitutional requirements to which we have made a reference, we are of the view that it would be useful and effective to structure appropriate machinery for contemporaneous recording and notification of all cases of arrest and detention to bring ' in transparency and accountability. It is desirable that the officer arrestihg a person should prepare a memo of his arrest at the time of arrest in the presence of at least one witness who may be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. The date and time of arrest shall be recorded in the memo which must also be countersigned by the arrestee. " ' 14. On this basis, detention guidelines were issued.

In "'" sense, the guidelines in the Vineet Narain case (supra) also purported to be to enforce the statute - without more, even though the constitutional right to a corrupt free government under Article 21 was involved. 15. There . are also several cases where guidelines may become necessary in thee absence of a statutory framework. 16. The justification for this was given in Vishaka's case (supra) and approved in Vineet Narain's case (supra) at pr. 52: Vishaka's paras 8. 14, 15 "8. Thus, the power of this Court under Article 32 for enforcement of the fundamental rights and the executive power of the Union have to meet the challenge to protect the working women from sexual harassment and to make their fundamental rights meaningful. Governance of the society by the rule of law mandates this requirement as logical concomitant of the constitutional scheme.

The • exercise performed by the Court in this matter is with this common perception shared with the learned Solicitor General and other members of the Bar who rendered valuable assistance in the performance of this difficult task in public interest. xxx 14.... The international conventions and norms are to be read into them in the absence of enacted domestic iaw occupying the field when there is no inconsistency between them. It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law. The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including ,. prevention of sexual harassment or abuse. Independence ~ of judiciary forms a part of our constitutional scheme.

The international conventions and norms are to be read into them in the absence of enacted domestic law occupying the field when there is no inconsistency between them. It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law. The High Court of Australia in Minister for Immigration and Ethnic Affairs v. Tech 128 ALR 353, has recognised the concept of legitimate expectation of its observance in the absence of a contrary legislative provision, even in the absence of a Bill of Rights in the Constitution of Australia. 'r 15. In Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, a provision in the ICCPR was referred to support the view taken that 'an enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right', as a public law ..

remedy under Article 32, distinct from the private law remedy in torts. There is no, reason why these international conventions and norms cannot, therefore, be used for construing the fundamental rights expressly guaranteed in the Constitution of India which embody the basic concept of gender equality in all spheres of human activity. \/ineet Narain Para 52 "As pointed out in Vishaka it is the duty of the executive to fill the vacuum by executive orders because its field is coterminous with that of the legislature, and where there is inaction even by the executive, for whatever reason, the judiciary must step in, in exercise of its constitutional obligations under the aforesaid provisions to provide a solution till such time as the legislature acts to perform its 0 role by enacting proper legislation to cover the field. " 17. Thus, as we have noted, there are a number of cases in which guidelines have been given * Lakshmi Kant Pandey v.

Union of India, (1984) 2 SCC 244 [Guidelines for adoption of minor children by foreigners were laid down] * Vishaka v. State of Rajasthan, (1997) 6 SCC 241 i [Guidelines were laid down to set up a mechanism to address the issue of sexual harassment at the workplace] * Vineet Narain v. Union of India, (1998) 1 SCC 226 [Directions were laid down to ensure the independence of the Vigilance Commission] * State of WB. v. Sampat Lal, (1985) 1 SCC 317 * K. Veeraswami (1991) 3 SCC 655 * Union Carbide Corporation v. Union of India, (1991) 4 sec 584 * Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4 sec 406 * Delhi Development Authority v. Skipper Construction Co. (P) Ltd. , (1996) 4 SCC 622; * Dinesh Trivedi, M. P. v. Union of India, (1997) 4 sec 306 * Common Cause v. Union of India, AIR 1996 SC 929 [Directions were issued for revamping the system of blood banks in the country) 18.

The present case is one in which guidelines are necessary: (i) to the police to enforce statutory duties (ii) to create a special purpose vehicle in respect of damages for riot cases 19. This issue was examined by the Nariman Committee which considered: "... where (in such cases) there is destruction/damage to properties and loss of lives or injuries to persons - (i) the true measures of such damages (ii) the modalities for imposition of such damages and... " (p. 2 of the Report) 20. These 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). 21. So far as the role of media is concerned the Mr. F. S.

Nariman Committee has suggested certain modalities which are essentially as follows: (a) The Trusteeship Principle - Professional journalists operate as trustees of public and their mission should be to seek the truth and to report it with integrity and independence. (b) The Self Regulation Principles - A model of self-regulation should be based upon the principles of impartiality and objectivity in reporting; ensuring neutrality; responsible reporting of sensitive issues, especially crime, violence, agitations and protests; sensitivity in reporting women and children and matters relating to national security; respect for privacy. (c) Content Regulations - In principle, content regulation except under very exceptional circumstances, is not to be encouraged beyond vetting of cinema and advertising through the existing statues.

It should be incumbent on the media to classify its work through warning systems as in cinema so that children and those who are challenged adhere to time, place and manner restraints. The media must also evolve codes and complaint systems. But prior content control (while accepting the importance of codes for self restraint) goes to the root of censorship and is unsuited to the role of media in democracy. (d) Complaints Principle - There should be an effective mechanism to address __ complaints in a fair and just manner. (e) Balance Principle - A balance has to be maintained which is censorial on the basis of the principles of proportionality and least invasiveness, but which effectively ensures democratic • governance and self restraint from news publications that the other point of view is properly accepted and accommodated. 22.

It is felt that the appropriate methods have to be devised norms of self regulation rather than external regulation in a respectable and effective way both for the broadcasters as well as the industry. It has been stated that the steps constitute a welcome move and should be explored further. The ). proposed norms read as follows: "The NBA believes that media that is meant to expose the lapses in government and in public life cannot be obviously be regulated by government, else it would lack credibility. It is a fundamental paradigm of freedom of speech that media must be free from governmental control in the matter of "content" and that censorship and free speech are sworn enemies. It therefore falls upon the journalistic + profession to evolve institutional checks and safeguards, specific to the electronic media, that can define the path .

that would conform to the highest standards of rectitude and journalistic ethics and guide the media in the discharge of its solemn Constitutional duty. There are models of governance evolved in other countries which have seen evolution of the electronic m. edia, including the news media, much before it developed in India. The remarkable feature of all these models is "self-governance", and a ·monitoring by a "jury of peers ". 23. The Committee has recommended the following suggestions: (i) India has a strong, competitive print and electronic ... media (ii) Given the exigencies of competition, there is a degree of sensationalism, which is itself not harmful so long as it preserves the essential role of the media viz: to report news as it occurs - and eschew comment or criticism. There are differing views as to whether the media (particularly the electronic media) has exercised its right and privilege responsibly. But generalisations should be avoided.

The important thing is that the electronic (and print) media has expressed (unanimously) its wish to act responsibly. The media has largely responsible and more importantly, it wishes to act responsibly. (iii) Regulation of the media is not an end in itself; and allocative regulation is necessary because the 'air waves' are public property and cannot technically be free for all but have to be distributed in a fair m~rnner. However, allocative regulation is different from regulation per se. All regulation has to be within the framework of the constitutional provision. However, a fair interpretation of the constitutional dispensation is to recognize that the principle of proportionality is built into the concept of reasonableness whereby any restrictions on the media follow the least invasive approach.. While emphasizing the need for media responsibility, such an approach would strike the correct balance between free speech and the independence of the nieciia.

(iv) Although the print media has been pla~ed under the supervision of the Press Council, there is need for choosing effective measures of supervision - supervision not control. (v) As far as amendmehts mooted or proposed to the Press Council Act, 1978 this Committee would support such amendments as they do not violate Article 19(1) (a) - which is a preferred freedom. (vi) Apart from the Press Council Act, 1978, there is a need for newspapers and journals to set up their own independent mechanism. (vii) The pre censorship model used for cinema under the Cinematography Act, 1952 or the supervisory model for advertisements is not at all appropriate, and should not be extended to live print or broadcasting media.

(viii) This Committee wholly endorses the need for the formation of ) (a) principles of responsible broadcasting (b) institutional arrangements of self regulation But the Committee emphasised the need not to drift from self regulation to some statutory structure which may prove to be oppressive and full of litigative potential. (ix) The Committee approved of the NBA model as a process that can be built upon both at the broadcasting service provider level as well as the industry level and recommend that the same be incorporated as guidelines issued by this Court under Act 142 of the Constitution of India - as was done in Vishaka's case. 24. The suggestions are extremely importaot and they constitute sufficient guidelines which need to be adopted. But leave it to the appropriate authorities to take effective steps for their implementation. At this juncture we are not inclined to give any positive directions. 25. The writ petitions are disposed of.

We express our appreciation for the members of both the Committees and the Chairman of each Committee Justice K. T. Thomas and F. S. Nariman who are to be complimented for the pains taken by them to make recommendations which will go a long way to meet the challenges posed. B. B. B. Writ Petition disposed of.