New Delhi: Political parties as well as their leaders should be made criminally liable if they are found to have directed their supporters to vandalize public property during an agitation, and the accused will be considered guilty till proved otherwise, says an expert committee appointed by the Supreme Court (SC) to look into the merits of an Act that seeks to prevent damage to public property.
If the SC accepts the recommendations, it will make political parties accountable for such damages, a first, but politicians maintain that this radical revision of the law would leave it open for misuse.
Being accountable: A file photo of a Gujjar agitation in Rajasthan in 2008. In the aftermath of an agitation that began in June 2007, a committee headed by justice K.T. Thomas was appointed by the SC. Madhu Kapparath / Mint
A committee headed by justice K.T. Thomas was appointed by the court in June 2007 to look at the Prevention of Damage to Public Properties Act, 1984, and suggest changes to make it more effective. This was initiated in the aftermath of the Gujjar agitation in Rajasthan in June 2007 as a public interest case by the SC. The court also set up another committee headed by senior counsel Fali S. Nariman to examine the role of the media in cases where there is damage to property. The recommendations of the second committee are yet to be made public.
Both the reports were placed before the court when the matter came up for hearing on Friday. A bench headed by justice A. Pasayat asked the state governments to file their suggestions by 28 February and listed the case for hearing in March.
Independently, in October last year, the Maharashtra government had promulgated an ordinance seeking to make rioters pay for damage to public and private property. This move came in the wake of large scale vandalism caused by Raj Thackeray’s Maharashtra Navnirman Sena.
The Thomas committee states that the existing law is “inadequate” to control activities that could cause destruction to public property. Citing a “poor rate of convictions in trials” under the Act, it has suggested changes to deter such activity.
So, shifting away from the traditional principle of criminal law where the accused is assumed to be innocent till proven guilty, the committee recommends that the prosecution move with the presumption that the accused is guilty before giving him a chance to rebut allegations against him. In addition to this, the bail provisions have also been made stricter and police have been allowed to arrange, directly or with media support, for videos of violent activities that could be used as evidence to prove charges.
At present, section 3 of the Act states that an offender who causes damage to public property shall be punished with rigorous imprisonment for a term not less than six months, but which may extend to five years, along with a fine. Section 4 states that if explosives or fire is used while causing damage to property, the punishment is rigorous imprisonment for a minimum term of one year, but which could be extended to 10 years, along with a fine.
The rider to these sections in the Act is that the court can reduce the punishment “for reasons to be recorded”. The committee has recommended tightening of these norms, saying that the court must record “special reasons” and reduce sentences only in special circumstances.
But politicians fear abuse of such powers especially if applied wrongly to target political opposition. D. Raja, the national secretary of the Communist Party of India, says that in the emerging social scenario in India, political parties channel their struggles through protests and will not be deterred by “draconian” laws or recommendations. “We are concerned about the damage to public property. These kind of provisions could be misused. There could be provocation also during mass protests. How can political leaders be held responsible for them?”
Arguing similarly, Rajiv Pratap Rudy, spokesman for the Bharatiya Janata Party, says that any law to create public order is welcome. He adds, however, that zeroing in on leaders of parties is unfair: “Laws cannot be used for attributing the action of the individual against any political party or leaders. How does a leader prove that it was not done by him or his party? Laws cannot be draconian and should not violate fundamental rights. It is not a military regime to have summary trial and punishment. Restraint should be political rather than by draconian laws. Political protests are part of democracy.”
Ramesh Chennithala, president of Congress party in Kerala, which according to the report has the largest number of strikes called by political parties and few convictions in this regard, is in support for laws against public property damage. “But certain suggestions in the report can be misused. Besides, holding the political leaders responsible for the damages caused by some individuals is wrong. I agree that there should be a mechanism to ensure that no public property is damaged during a protest.” The Congress is the dominant party in the ruling United Progressive Alliance coalition at the Centre
Manish Tewari, a Congress spokesperson, says: “The report appears to have suggestions that have long-term implications and we have to study it thoroughly. But you cannot condone the damage and defilement of public properties during protests. It has to be balanced with rights to protest that is the inherent part of the fundamental rights.”
Liz Mathew and Ruhi Tewari contributed to this story.