In another manifestation of the Supreme Court’s activist avatar as well as the trend of poorly written judgments, Justice Pasayat writing for the court in In re Destruction of Public and Private Properties v. State of Andhra Pradesh and Others, has issued a series of guidelines to “fill the [alleged] vacuum in the law” regarding destruction of public and private property. Taking a serious note of the large scale destruction of public and private properties in the course of agitations, bandhs, hartals etc., the court initiated suo motu proceedings in May 2007 and appointed two committees, one headed by retd. Justice KT Thomas and the other by Mr. Fali Nariman to submit recommendations for supplementing the law relating to this issue as contained in the Prevention of Destruction of the Public Property Act,1984 (“PDPP” or “the Act”). The Act criminalises the destruction of public property and provides for the imposition of sentences upto a period of five years for such destruction. Citing various precedents including Vishaka v. State of Rajasthan, AIR 1997 SC 3011 for the proposition that the “judiciary [under Article 32] not only can but [apparently] must in the exercise of its constitutional obligations step in” to fill a perceived legal vacuum, the court in its decision dated April 16, 2009, issued a series of guidelines seeking to (i) change the evidentiary requirements for proving the commission of an offence under the PDPP Act, (ii) empower the police to enable them to better perform their statutory duties under the Police Act, 1861 and the Criminal Procedure Code, 1973 and (iii) to create a special purpose vehicle for assessing and awarding damages in riot cases. I briefly summarise below the guidelines pertaining to the first two issues but do not discuss them in any further detail in this post.
1. The PDPP Act must be so amended as to incorporate a rebuttable presumption of guilt after the prosecution has established two facts, namely, (i) that those accused were the leaders or office bearers of the organisation which called for the direct actions and (ii) that public property has been damaged in or during or in the aftermath of such direct actions.
2. The Act must contain a provision that makes the leaders of the organisation, which calls for the direct action, guilty of abetment of the offence. A more detailed discussion of the Supreme Court's judgment on this point can be found here.
3. The Act must empower police officers to maintain a panel of local video operators in order to collect videographic evidence of the damage to public property, which evidence would be admissible in court pursuant to amendments to the Evidence Act, 1872.
The remainder of this post will focus on the court’s directions with respect to awarding damages in tort for destruction of public and private property. Justice Pasayat begins by stating the classic distinction between criminal and tort law, the purpose of the former being to protect the public interest and punish wrongdoers, while that of the latter being to vindicate the rights of the individual and compensate the victim for loss, injury or damage suffered by him. He then swiftly moves on to recognize the awarding of exemplary damages in tort law, whose evident purpose is to deter certain kinds of actions as illustrating the fact that the distinction between tort and criminal law is not as rigid and immutable as appears on first glance. Adopting the Nariman Committee’s recommendations that in cases of destruction of property due to rioting etc. while compensatory damages must be the rule, the court held that punitive damages could be awarded to punish instances of vandalism and rioting to act as a future deterrent. The court went on to issue detailed guidelines regarding the initiation of judicial proceedings in such cases, the imputation of liability to private parties and its apportionment between parties as well as the procedure for assessment and awarding of damages in such cases.
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.
This blog has discussed the merits of civil vs. criminal liability for perpetrators of violence resulting in loss of life and destruction of property here and here. I believe and have previously written about the need for both civil and criminal liability for such actions. As Tarunabh succinctly puts it here, those who use violence for furthering their ends in defiance of constitutional values must pay up.
However, the court in its decision not only overreaches its authority in its so called attempt to supplement existing law, it also fails to provide any basis for its authority to issue directions making private persons liable for compensatory and punitive damages for loss of lives and destruction of private property. In providing a mechanism for awarding damages for destruction of both public and private property, the court goes beyond the provisions of the PDPP Act, which imposes criminal liability only for the destruction of public property, defined as property which is owned by, or in possession of or under the control of the government of India. Therefore, insofar as the court’s directions seek to make private persons/organizations liable for destruction of private property in cases of bandhs/riots, it cannot automatically be assumed that the authority to issue such directions emanates from Article 32 of the Constitution.
Of course, various High Courts in the past have made governments liable for tort damages in riot cases. In R. Gandhi v. Union of India (1989), the Madras High Court, in M/s Inderpuri General Stores v. Union of India (1992), the Jammu and Kashmir High Court and in Manjit Singh Sawhney v. Union of India (2005), the Delhi High Court ordered respective state and union governments to pay compensation to the victims of the anti-Sikh riots. The state's liability was grounded on the inaction by state offcials in protecting life and property. These decisions are justified under the constitutional torts jurisprudence of the court, which provides for the use of a tort law remedy to make governments liable for violations of fundamental rights in constitutional law.
However, the current decision makes individual perpetrators tortiously liable under the public law mechanism of a writ remedy that is available to enforce fundamental rights, most of which are available only against the state. Ordinarily, an individual can bring a private law tort suit against the perpetrators of the riots but then he would be subject to the rules of evidence and civil procedure applicable under an ordinary civil suit. By the mechanism outlined by the court individuals can essentially bring tort claims for damages by filing writ petitions against private parties responsible for calling the hartal/bandh during which the destruction of private property took place. The availability of such a remedy is premised on the existence of a norm of horizontal application of rights between private parties without any discussion as to whether there is textual support for such a norm. While the court's intention in introducing a mechanism that makes those who resort to violence accountable for their actions is laudable, the method by which the court goes about providing for the same is problematic. The court’s selective and ad hoc approach to horizontal application of fundamental rights has led to inconsistent interpretations of constitutional rights norms resulting in a muddled and messy fundamental rights jurisprudence. Thus, after this decision, while private parties may be constitutionally liable to individuals for violence to life and property during riots and bandhs, they may continue to discriminate on grounds of caste and religion in selling them or renting out property. The need of the hour is for Parliament to enact a statute governing civil liability in cases of destruction of public and private property to substitute ad hoc judicial lawmaking in this area.