Friday, May 29, 2009

Punjab violence: Applying the tort liability case

Recent events of violence in Punjab after the assasination of a Sikh guru in Vienna fall squarely within the type of cases that the Supreme Court intended to cover while delivering its judgment in In re Destruction of Public and Private Properties v. State of Andhra Pradesh and Others (2009) [discussed on this blog previously]. I will reproduce Namita's helpful summary of the directions given in that case:

1. Wherever a mass destruction to property takes place due to protests etc., the High Court or, where more than one state is involved, the Supreme Court can initiate suo motu proceedings to investigate the damage caused and to award compensation.
2. In each case, the court shall 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.
3. The Claims Commissioner may seek court instructions to summon video or other recordings from private and public sources to pinpoint thedamage and establish nexus with the perpetrators of the damage.
4. The principles of absolute liability shall apply once the nexus with the event that precipitated the damage is established. The court will apportion liability between the actual perpetrators of the crime as well as organisers of the event giving rise to liability.
5. Exemplary damages may be awarded to an extent not greater than twice the amount of the damages liable to be paid.
6. Damages shall be assessed for causing destruction to public and private property as well as for causing injury or death to a person or persons and finally for costs of preventive actions by the police and the other authorities.

Will the Punjab and Haryana High Court now follow these clear directions of the Supreme Court?

3 comments:

K.V.DHANANJAY said...

I sincerely trust that the Pubjab and Haryana High Court will take these events with utmost seriousness and resolve all claims most expeditiously.

Disgruntled people taking to the streets to cause damage to property for every conceivable or imaginary cause is a serious evil in this country.

Gopal said...

Unfortunately, these are not 'Directions'. Justice Pasayat makes it clear that they are mere guidelines. If only he had the 'prescience' of mind!

Namita Wahi said...

Hi Gopal,

As I have previously stated in a comment to my blogpost on this case, Justice Pasayat writing for the court accepted the recommendations of the Thomas and Nariman committees and issued guidelines to effectuate them. In paragraph 4 of the judgment, after discussing the Thomas committee's recommendations, Justice Pasayat states, "The recommendations according to us are wholesome and need to be accepted. To effectuate the modalities for preventive action and adding teeth to enquiry/investigation following guidelines are to be observed." He then proceeds to list the guidelines.

Justice Pasayat then goes on to discuss the Nariman committee's recommendations on assessment and awarding of civil damages as well as surveys the law on tort liability in England and Australia. In light of this survey and previous precedents of the Supreme Court, Justice Pasayat decides to adopt the Nariman committee's recommendations and issue guidelines. The court states, "In the absence of legislation the following guidelines are to be adopted to assess damages".

The guidelines that Tarunabh has summarised are based on the Nariman committee's recommendations. To quote from the judgment, "The power of this Court also extends to laying down guidelines. In Union of
India v. Association for Democratic Reforms (2002) 5 SCC 294, this Court
observed:
"...It is not possible for this court to give any directions for amending the Act or
statutory Rules. It is for Parliament to amend the Act and the Rules. It is also
established law that no direction can be given, which would be contrary to the
Act and the Rules. However, it is equally settled that in case when the Act or
Rules are silent on a particular subject and the authority implementing the same
has constitutional or statutory power to implement it, the court can necessarily
issue directions or orders on the said subject to fill the vacuum or void till the
suitable law is enacted." (pp.307)

Thus, the Court's guidelines in this case are meant to fill the vacuum in the law. In paragraphs 25-30 of the judgment, the Court then goes on to discuss various precedents to support its authority to issue guidelines including Vineet Narain, D. K. Basu etc. In paragraph 30 of the judgment, the Court concludes that the "guidelines [issued by it] 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)."

Therefore, clearly the guidelines issued by the court regarding awarding of damages for destruction of public property are binding law under Art 226 read with Art 141 of the Constitution. Therefore, the Punjab and Haryana High Court is bound to follow these guidelines in deciding any cases that come up before it regarding destruction of public property.