De­struc­tion of Pub­lic Prop­erty dur­ing Bandhs ............................................................

Le­gal Frame­work Gov­ern­ing It

Libertatem Magazine - - Content - By Adit Ke­sar­wani

DE­STRUC­TION OF PUB­LIC PROP­ERTY DUR­ING BANDHS: LE­GAL FRAME­WORK GOV­ERN­ING IT

The word “Bandh” has its ori­gin from Hindi word which means “shut­down” or “closed up”. It has been pop­u­larly used by the coun­try­men to show their anger, rage against govern­men­tal ac­tions or de­ci­sions or can be re­ferred as a means of protest pro­ject­ing civil dis­obe­di­ence. The big ques­tion arises as to whose rights should be given pref­er­ence, i.e. rights of the peo­ple who want to con­tinue their daily rou­tine or the rights of the per­sons in­volved in th­ese bandhs. Law needs to come out with cer­tain mea­sures to curb this men­ace or else the coun­try will have to suf­fer a lot. As Supreme Court in De­struc­tion of Pub­lic & Pri­vate prop­er­ties v. State of A.P, had taken suo motu ac­tion and pro­nounced cer­tain guide­lines for de­ter­min­ing the quan­tum of losses that take place and fix­ing the li­a­bil­i­ties upon the or­ga­niz­ers of that protest, and fur­ther de­clared that un­til and un­less leg­is­la­tor comes up with any ap­pro­pri­ate leg­is­la­tion, th­ese guide­lines would be bind­ing and ef­fec­tive. [Ti­lak Marg, The Road to Jus­tice, Supreme Court guide­lines for dam­age to prop­erty dur­ing ag­i­ta­tions al­ready ex­ist, Feb 24, 2016]

Over a pe­riod of time it can be said that the losses to the pub­lic prop­erty is in­creas­ing day by day due to th­ese bandhs, har­tals and noth­ing is be­ing done for con­trol­ling or putting any chains on the legs of the pro­tes­tors. The in­ci­dent of Patels in Gu­jarat and Jat ag­i­ta­tions in Haryana seek­ing reser­va­tions are still fresh and no one is able to for­get it, re­ports state that dur­ing the Jat move­ment losses up to the ex­tent of more than 20,000 crore hap­pened

[Ti­lak Marg, The Road to Jus­tice, Supreme Court guide­lines for dam­age to prop­erty dur­ing ag­i­ta­tions al­ready ex­ist, Feb 24, 2016].

CON­STI­TU­TION­AL­ITY OF BANDH

Court while con­sid­er­ing the con­sti­tu­tion­al­ity or un­con­sti­tu­tion­al­ity of Bandh, stated that this is an idea which projects that ev­ery­thing needs to be closed down or locked up, and all pub­lic, pri­vate works should cease on that day. Past ex­pe­ri­ences also show that if any­one tried

to do any­thing or go against the or­der of the pro­tes­tors, they have only be­come a vic­tim of vi­o­lence or have been threat­ened badly. Dur­ing bandhs, the fun­da­men­tal right of free move­ment, ac­cess to med­i­cal treat­ment or us­age of pub­lic roads is all pro­hib­ited and all th­ese rights are vi­o­lated due to all th­ese ag­i­ta­tions. The con­tention of the Right to Free Speech and Ex­pres­sion raised by po­lit­i­cal par­ties can’t be al­lowed be­cause this right un­der Ar­ti­cle 19 of the Con­sti­tu­tion of In­dia is sub­ject to silent and peace­ful protest and not by vi­o­lence. Tak­ing into ac­count all the de­struc­tion caused to the pub­lic prop­erty, vi­o­la­tion of Fun­da­men­tal Rights of the peo­ple and the losses which the econ­omy suf­fered, it could be con­tended that Bandhs are il­le­gal and un­con­sti­tu­tional.

PRONOUNCEMENTSLEGAL FRAME­WORK AND WITH JU­DI­CIAL GUIDE­LINES RE­GARDS TO

Pri­mar­ily the state has the re­spon­si­bil­ity to en­sure safety of life and pub­lic prop­er­ties dur­ing bandhs. Leg­is­la­ture had tried to come up with leg­is­la­tion for safe­guard­ing prop­erty, and Preven­tion of Dam­age to Pub­lic Prop­erty Act, 1984 be­ing a spe­cial leg­is­la­tion en­acted by the leg­is­la­ture for pro­tect­ing the pub­lic prop­erty from losses and it deals with mis­chievous peo­ple who cause harm and dam­age to the pub­lic prop­erty. The act be­ing spe­cific in na­ture also lays down spe­cific pun­ish­ment for the type of losses which oc­curred, for e.g., loss caused by way of fire or by the na­ture of prop­erty dam­aged. In­dian Pe­nal Code also rec­og­nizes cer­tain of­fences of the like na­ture and men­tions pun­ish­ment for the same. Code of Crim­i­nal Pro­ce­dure also gives vast amount of pow­ers to the Po­lice au­thor­i­ties and un­der sec­tion 151 of the code, it rec­og­nizes that in the wake of preven­tion of any crime or mishap, Po­lice can make ar­rests with­out war­rant or or­der from the mag­is­trate.

The most im­por­tant case in the event of rul­ing over the de­struc­tion of pub­lic prop­erty dur­ing bandh is In Re: De­struc­tion of pub­lic and pri­vate prop­er­ties v. State of A.P.& ors. In this case the court set up two com­mit­tees for deal­ing with the is­sue of large scale de­struc­tion of the pub­lic and pri­vate prop­er­ties. One of the sig­nif­i­cant rec­om­men­da­tions given by the com­mit­tee was an amend­ment in the Preven­tion of Dam­age to Pub­lic Prop­erty Act, which in­cludes mak­ing the leader guilty of the act, can­celling the bail ap­pli­ca­tion and grant­ing only in cases where court has rea­son­able ground to be­lieve that the per­son ac­cused ei­ther di­rectly or in­di­rectly was not in­volved in the ac­tiv­ity. An­other ma­jor rec­om­men­da­tion was of im­po­si­tion of strict li­a­bil­ity on the per­sons who cause dam­age to the prop­erty and are part of such ag­i­ta­tions. The com­mit­tee also rec­om­mended fol­low­ing the prin­ci­ple of “resti­tuto in in­ter­reg­num” (mak­ing whole or restor­ing to orig­i­nal po­si­tion) for de­cid­ing and award­ing com­pen­sa­tion, fine on the of­fend­ers. Apart from the above dis­cussed rec­om­men­da­tions, the guide­lines ma­jorly in­clude the fol­low­ing [Law Mantra, An over­view and Crit­i­cal Anal­y­sis of the le­gal Frame­work Reg­u­lat­ing Bandh, Har­tal and Sim­i­lar Protests in In­dia]

a.the po­lice shall sub­mit a re­port of the event and dam­ages caused to the State gov­ern­ment which shall then present the re­port be­fore the High Court or Supreme Court, as the case may be;

b.high Court may is­sue suo motu ac­tion and can set up ma­chin­ery for de­ter­min­ing the dam­age caused and the com­pen­sa­tion to be awarded;

c.ab­so­lute li­a­bil­ity shall be im­posed upon the of­fender;

d.dam­ages should be as­sessed and cost of ac­tions taken by the po­lice and the ex­ec­u­tive to take pre­ven­tive steps should be mea­sured;

e.ex­em­plary dam­ages not ex­ceed­ing twice the amount of the dam­ages li­able to be paid may be im­posed.

CON­CLU­SION

If we look at the pre­vi­ous in­stances of bandhs, it shows that it has al­ways caused dam­age and de­struc­tion to the pub­lic prop­erty and bod­ily in­jury to in­no­cent peo­ple. It cre­ates re­stric­tion on the free move­ment of peo­ple and vi­o­lates the fun­da­men­tal rights of the cit­i­zens and the pub­lic in fear of such vi­o­lence also does not take the risk of en­forc­ing their rights. So, a new leg­is­la­tion or amend­ment in ex­ist­ing laws should be brought up in such a way so as to re­strain th­ese peo­ple from caus­ing harm to pub­lic prop­erty and pro­tect­ing the gen­eral pub­lic from the rage and anger of such vi­o­lence. All such ac­tiv­i­ties have huge im­pact on the econ­omy and all th­ese things are weak­en­ing the In­dian econ­omy. Our con­sti­tu­tion states that the wel­fare of the peo­ple is supreme but th­ese bandhs are de­mol­ish­ing the ba­sic struc­ture of the Con­sti­tu­tion and hence should be de­clared un­con­sti­tu­tional.

Gov­ern­ment came up with the draft bill for amend­ing the Preven­tion of Dam­age to Pub­lic Prop­erty and in this it in­cor­po­rated the rec­om­men­da­tions given by the com­mit­tees es­tab­lished un­der the Supreme Court in the case of In Re: De­struc­tion of pub­lic and pri­vate prop­er­ties v. State of A.P.& ors.. Fur­ther it is a sign of re­lief and gives a pos­i­tive sig­nal show­ing that the Cen­tral Gov­ern­ment is also sen­si­tized with the is­sue and it had taken it into con­sid­er­a­tion. Now its time for the State leg­is­la­ture to show its dom­i­nance and to come up with a leg­is­la­tion deal­ing with the law and or­der sit­u­a­tion dur­ing bandh, har­tal and other sim­i­lar other move­ments. Apart from such leg­is­la­tions, Po­lice au­thor­i­ties should try to de­vise such a mech­a­nism so that ex­am­i­na­tions are called off, pub­lic trans­port should never be stopped just be­cause of th­ese im­moral ac­tiv­i­ties, as it gives a clear mes­sage and mo­ti­va­tion to the or­ga­niz­ers that Po­lice and Gov­ern­ment have sur­ren­dered be­fore us and now we have won!

Newspapers in English

Newspapers from India

© PressReader. All rights reserved.