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Monday, June 25, 2018

Dera vandalism: High Court draws hard line, but law remains unclear and recovery tough

An old question — how, and from whom, to recover losses caused by violent protesters — is back. Indian Express lays down key issues and the backstory.

Written by Sofi Ahsan | Updated: October 2, 2017 9:31:03 am
dera violence, gurmeet ram rahim singh, dera sacha sauda, panchkula violence, ram rahim singh, dera follower violence, haryana dgp, section 144, indian express Dera followers fight a pitched battle with security forces on highway between Panchkula and Zirakpur. (Express photo Jaipal Singh/File)

Punjab and Haryana High Court has taken a strong view of the deadly violence and destruction of property in Panchkula on August 25 following the conviction of Dera Sacha Sauda chief Gurmeet Ram Rahim Singh, and said it would recover the losses from those “instigating and inciting the crowd”. The court has directed Haryana and Punjab to identify the assets of the group — a process that the two states have completed.

There is no specific law, however, that underpins the court’s order. Last week, the court said it would take up questions relating to its jurisdiction on the recovery of the losses, and in the law and order situation, in subsequent hearings. It went ahead and ordered the setting up of tribunals in both states to assess the claims that have been received on the damage to properties.

How did the court come to intervene in this matter?

The court stepped in after a Panchkula lawyer filed a public interest plea seeking intervention in the law and order situation as tens of thousands of Ram Rahim’s followers gathered in Panchkula in the days leading up to August 25. On August 29, a Bench of Justices S S Saron (now retired), Surya Kant and Avneesh Jhingan formulated eight questions, including two on jurisdiction. During the hearing on September 27, the Bench — on which Justice Augustine George Masih has replaced Justice Saron — said the questions would be taken up at later.

So do courts usually order recovery from those responsible for damaging public property?

There is no law that specifically states agitators must pay for the property they damage. But legal experts say there is a trend of courts ordering such recoveries.

Additional Solicitor General of India Satya Pal Jain, who is representing the Centre in the PIL, said he has sought
instructions on the response to be filed to the HC’s order. “The questions have been formed with the involvement and consultation of all parties in the case. These are legal issues and the law is evolving. We cannot say the last chapter has been written. I think the time has come that why not fix responsibility in such situations on those persons who create such situations? I think the question has rightly been framed and all questions will be examined in the deliberations,” Jain said.

Haryana Advocate General Baldev Raj Mahajan said: “Either the government or the court can order attachment, but the liability is required to be pinpointed. The matter is sub judice and both parties (state and Dera) are before the court,” Mahajan said.

What does the Constitution say on the powers of a High Court in this regard?

Justice (retd) Ashok Bhan, a former judge of the Supreme Court, said the situation in Panchkula did, indeed, warrant the court’s intervention. Article 226 (Power of High Courts to issue certain writs) allows for issuing “directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them for the enforcement of any of the rights conferred by Part III (Fundamental Rights) and for any other purpose”.

According to Justice (retd) Bhan, “Under Article 226, strictly speaking on interpretation, the High Court can do it (order recoveries from agitators). It was an extraordinary situation and in such situations, extraordinary orders are passed. They can also restrict it to the peculiar facts of this case because you cannot have a similar
situation every time. There is a trend of recovering money from people who organise agitations.”

Whether attempts at recoveries are feasible or practical is, however, an altogether different question. A senior lawyer associated with the case said that even though the High Court is serious, “It is practically impossible to make recoveries from the people who were part of the violent mobs. The authorities will get a blank cheque for arbitrariness.” According to this lawyer, losses can be made good through the attachment of Dera properties, and any decision on this count must also consider “the idea of social justice”.

What have courts said in such cases earlier?

In 2007, the Supreme Court had appointed two committees –headed by retired SC judge Justice K T Thomas, and eminent jurist Fali S Nariman. The Thomas Committee recommended that the Prevention of Damage to Public Property Act be amended to include a provision that would make leaders of the agitating group “which has called for ‘direct action’ guilty of abetment of the offence”. The Nariman Committee said the Supreme Court should evolve a principle of liability for vandalism and rioting leading to destruction of public and private property. This punitive liability should be borne by the “actual perpetrators of the crime as well as organisers of the event… to be shared as finally determined by the High Court or Supreme Court…”

The recommendations of both Committees were accepted on April 16, 2009. Last year, hearing a plea related to the Patidar agitation in Gujarat, the Supreme Court observed that protesters must be made to pay for the damage they had caused. As far back as 2002, Kerala High Court had given directions to the state on the recovery of damage caused by participants in a strike.

On the basis of the Thomas Committee report, the Centre invited, in 2015, suggestions from the public on the proposed amendments in PDPP Act. The Bill is yet to be tabled in Parliament.

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