Monday, November 10, 2008

Vicarious liability for political violence

Tarunabh, while analysing the provisions of Maharashtra ordinance, has raised the issue of forcing the perpetrators of political violence pay for the losses suffered by their victims. But I am not at all sanguine about the effectiveness of imposing fines on the leadership of the parties which sponsor such violence. Following the Kerala High Court's ban on the holding of bandhs, and the Supreme Court's endorsement of the judgment, fines have been imposed on political parties sponsoring bandhs, and the parties had indeed paid such fines but it has not prevented the parties from using bandhs or strikes as a political weapon. We already have the Prevention of Damage to Public Property Act, 1984 which extends to the whole of India except J&K, and had come into force on January 28, 1984. Sections 3 and 4 of this Act impose imprisonment as well as fine on whoever commits mischief by doing any act in respect of any public property. 'Mischief' in this Act is defined according to the definition in S.425 IPC. The ingredients of Sections 425 and 426 IPC are broad enough to cover the liability of sponsors of violence as it includes intention or knowledge of likelihood to cause wrongful loss or damage to the public or to any person. The question is how many have indeed been punished under these provisions for political violence, causing damage to public property. The Thomas Committee was set up precisely to make this Act effective, but its tarty progress reveals the problems it faces in collecting the requisite data from the States.
Update: As the author of the comment shows, the IPC sections provide for direct liability of the sponsors of violence, not vicarious. Making the leaders vicariously liable (as Tarunabh has suggested) may not be an effective deterrent.

1 comment:

Anonymous said...

Venkatesan,

I think its best not to use "vicarious liability" in such situations. Conceptually, as I am sure you are aware, vicarious liability means making one liable for anther's fault. As you suggest, the definition of "mischief" is wide enough to cover "intention" "nowledge" or "likelihood". That does not mean it brings in vicarious liability. Those with "knowledge" are still offendors themselves. Numerous cases hav held that there is no vicarious liability under the IPC except under certain circumstances (eg. conspiracy to some extent; common intention u/s 34).

Is this just a quibble over words? Perhaps, but bringing in vicarious liability terminology is likely to confuse more than clarify. Do we really want politicians to escape liability by using "this-was-outside-our-line-of-business" etc? I doubt... and why not reinforce the point that they are DIRECTLY responsible? Alo, best to leave vcarious liability terminologies away from crim.