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Monday, July 23, 2018

Why lawmakers in J&K are split over making those who wreck property pay

Is dissent being prosecuted, rather than protected, as critics allege? What is the new law, what issues does it raise?

Written by Sofi Ahsan | Updated: February 27, 2018 8:31:56 am
jk public property (prevention of damages) act, 1985, jk public property act amendment bill, mehooba mufti, what is jk public property act, j&k public property explained, jammu and kashmir assembly, india news, indian express news The law, brought a year after Parliament passed The Prevention of Damage to Public Property (PDPP) Act, 1984, contains penal provisions against individuals who damage public property. (Representational)

A proposed amendment to The Jammu and Kashmir Public Property (Prevention of Damage) Act, 1985, which was introduced in the Budget session of the state Assembly, was referred to a Select Committee of the House on February 10 following Opposition protests against its “draconian” provisions.

While J&K has long witnessed violent, sustained street protests, Parliamentary Affairs Minister Abdul Rehman Veeri presented no estimates of the damage caused to property by protesters. During the mass protests in the Valley after the killing of Hizbul Mujahideen commander Burhan Wani in 2016, several police stations and other public buildings were damaged — however, according to National Crime Records Bureau data, only eight cases were registered under the 1985 law that year.

Read | In Constitution, a range of ‘special provisions’ for states other than J&K, too

The amendment seeks to allow the state to recover the market value of public or private properties damaged during a protest from the protesters as well as the organisers of the protest. An Ordinance to this effect had been notified last October.

What is The Jammu and Kashmir Public Property (Prevention of Damage) Act, 1985?

The law, brought a year after Parliament passed The Prevention of Damage to Public Property (PDPP) Act, 1984, contains penal provisions against individuals who damage public property. The maximum sentence is five years in prison, along with a fine, which can extend up to 10 years in case of damage by fire or explosive substances. Bail is not available until the prosecution has had a chance to oppose it in court.

And what changes did the amendment suggest?

It focuses on damage caused to properties during protests, including damage to private properties. It defines “direct action” as the use of strikes or other forms of protest, rather than negotiation, to achieve a goal. And it increases the minimum punishment from six months in jail to two years’ imprisonment.

Why did the law need to be changed?

The October 2017 amendment Ordinance was approved with the aim of deterring protesters from indulging in violence and damaging property. The wave of protests following Burhan Wani’s killing, during which police stations were pelted with stones, was a major provocation. The amendment said that persons organising protests or “direct action” would face imprisonment, irrespective of whether they were actually involved in damaging properties. They would, however, have the chance to try to establish that those who damaged properties were not connected with the protest, and that all “reasonable measures” to prevent those incidents had been taken.

What is the provision on cost recovery?

The amendment makes the guilty liable to pay a fine “equivalent to the market value of the property damaged or destroyed”. The provision also extends to those who organised the protest during which the incident took place. Failure to pay extends the jail term by six months for those responsible for the damage, and by one year for the organisers of the protest.

But how can the police prove their case?

Situations where damage to property is anticipated, can be videographed. As soon as the agitation is over, the officer can present the recorded material before a magistrate, who will hand it over to the in-charge of the police station concerned for production before the court. On whether a person is responsible for the damage or was an organiser of the protest, the law states: “The court may presume having regard to all other circumstances of the case, that such offence has been committed or abetted, as the case may be, by such person.”

Has the central Act also been amended?

In May 2015, the union Ministry of Home Affairs did, indeed, invite public suggestions on a draft PDPP Act (Amendment) Bill, 2015. The draft law had a provision on recovery of damages, with a fine equivalent to the market value of the damaged public property, and proposed to hold officebearers of the organisation that had organised the demonstration guilty of abetment. However, the Bill was never tabled in Parliament.

What have the courts said on the recovery of costs?

In 2007, the Supreme Court took suo motu cognizance of issues related to damage to properties during public protests. The Bench appointed two committees to look into the matter, headed by retired Supreme Court judge K T Thomas, and the eminent jurist Fali S Nariman. The Justice Thomas Committee recommended an amendment to the PDPP Act to hold leaders of the agitating group guilty of abetment. The Nariman Committee asked the apex court to “evolve a principle of liability, punitive in nature, on account of vandalism and rioting leading to damage/destruction of property…”. The liability should lie with “the actual perpetrators of the crime as well as organisers of the event giving rise to the liability — to be shared as finally determined by the High Court or Supreme Court as the case may be”, the Nariman Committee said.

Last year, the Punjab and Haryana High Court said that the cost of the damage done to properties by followers of the Dera Sacha Sauda after Gurmeet Ram Rahim was convicted of rape, should be recovered by attaching the assets of the Dera. The questions framed by the court on the proposed recovery are yet to be considered by the full Bench hearing the case.

And what was the basis of the opposition to the proposed amendment in J&K?

The separatists protested, as did the Opposition in the Assembly, including the J&K National Conference. The CPI(M) MLA from Kulgam, Mohammad Yousuf Tarigami, told The Indian Express that such laws have been resisted in other states and in Parliament as well. “We already have laws such as the AFSPA and Public Safety Act, and the confidence level of the people in the state is virtually at its lowest ebb. You cannot build confidence by bringing in more such laws. Dissent has to be protected, and not prosecuted,” Tarigami said.

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