Kodungallur Film Society & ANR. Vs. Union of India & Ors. [October 01, 2018]
2018 Latest Caselaw 709 SC

Kodungallur Film Society & ANR. Vs. Union of India & Ors.

[Writ Petition (Civil) No.330 of 2018]

A.M. Khanwilkar, J.

1. The petitioners have filed the present writ petition on 25th January, 2018, in the backdrop of mob violence, protests and demonstrations which erupted across the nation in the recent past, especially against cultural programmes and establishments and the ensuing damage to public and private properties arising out of such violence. Petitioner No. 1 is a registered film society and petitioner no. 2, is a member of the petitioner no.1 film society. They have highlighted law and order problems arising out of the release of several films, especially the violence surrounding the release of the film "Padmaavat', and submit that fundamentalist outfits and fringe groups have been issuing threats and engaging in acts of violence against people and property to disrupt and prevent public exhibitions of these films on the pretext that they offend their cultural/religious sentiments.

These groups engage in violence against artistic expression, with utter impunity and show complete disregard for the rule of law and constitutional values. The films which are protested against are certified for public exhibition in accordance with law under the Cinematograph Act and by attempting to stop their exhibition, these groups operate as "super censors', exercising unlawful authority and power outside the control and without the sanction of the State.

These attacks on films are part of a larger problem whereby private individuals and groups impose unlawful restraints by threatening violence upon citizens' artistic freedoms and thereby impinge on the freedom of speech and expression under Article 19(1)(a) of the Constitution of India. The petitioners contend that the respondent state governments then themselves ban the exhibition of such films, citing law and order problems, without clamping down on the root cause of such problems namely the individuals and groups who incite and commit violence. It is also contended that many such groups have tacit support from the political parties in power.

2. The petitioners have consequently prayed for the following reliefs:

"a) Issue a writ in the nature of mandamus, or any other appropriate writ, direction or order directing the respondents to strictly follow and implement the guidelines formulated by this Hon'ble Court in In Re: Destruction of Public and Private Properties v. Govt. of AP (2009) 5 SCC 212 with regard to measures to be taken to prevent destruction of public and private properties in mass protestes and demonstrations, and also regarding the modalities of fixing liability and recovering compensation for damages caused to public and private properties during such demonstrations and protests, particularly mentioned in Paragraph 12 and 15 of SCC Report of the said judgment.

b) appoint Claims Commissioner in the manner stated in paragraph 15 of the judgment in In Re: Destruction of Public and Private Properties v. Govt. of AP (2009) 5 SCC 212 to assess damages caused to public and private properties by protestors and also to fix liability not only on the perpetrators but also on the leaders of the groups/outfits/organizations which instigated agitations with their threats against film makers and exhibitors and through their call for destroying multiplexes, malls, cinema-halls, theaters etc. in order to prevent the exhibition of films;

c) Issue a writ or order or direction in the nature of Mandamus or any other appropriate Writ or order directing all the state governments to initiate forthwith action under the Indian Penal Code 1860 and the Prevention of Destruction to Public Property Act 1984 against persons who commit, cause to commit and incite violence and acts of destruction with the intention of preventing and disrupting the screening of films which are certified for public exhibition under the Cinematograph Act, 1952 as it is violative of Article 19 (1)(a) of the Constitution of India, in the interest of justice; and ;

d) Issue a writ or order or direction in the nature of Mandamus or any other appropriate Writ or order directing the respondents to recover the additional expenditure involved in providing security to film exhibition centers from those people who have raised threats against exhibiting certified films, in the interest of justice; and

e) Issue a writ or order or direction in the nature of Mandamus or any other appropriate Writ or order directing the respondents to complete the investigation and trial in such offences in a time bound manner, in the interest of justice; and

f) Issue a writ or order or direction in the nature of Mandamus or any other appropriate Writ or order that the bail applications, if any, moved by persons arrested for committing, causing, abetting or inciting acts of violence and destruction with the intention of preventing and disrupting the screening of films certified for public exhibition under the Cinematograph Act 1952 will be allowed only on condition that they deposit the sum equivalent to the loss quantified to have been caused by them, or furnish security for such quantified loss and also, in the interest of justice; and

g) Issue a writ or order or direction in the nature of Mandamus or any other appropriate Writ or order that the assets and properties of such arrested persons and also the leaders of protesting groups which incited or abetted violence and destruction, will remain under attachment for the loss quantified to have been caused until its realization, in the interest of justice; and

h) Issue a writ in the nature of mandamus, or any other appropriate writ, direction or order directing the respondents to file status reports regarding the implementation of actions taken by them with respect to guidelines formulated by this Hon'ble Court in strictly follow and implement the guidelines formulated by this Hon'ble Court in In Re: Destruction of Public and Private Properties v. Govt. of AP (2009) 5 SCC, particularly mentioned in Paragraph 12 and 15 of SCC Report of the said judgment.

i) Issue a writ in the nature of mandamus, or any other appropriate writ, direction or order directing the respondents to explore the options of invoking the provisions of Unlawful Activities (Prevention) Act 1967 against the outfits/groups/organizations which make brazen threats on film makers and artists, and indulge in systematic and organized acts of destruction and damage of property so as to achieve their unlawful ends by striking terror in society; j) Please to issue any other writ or direction(s) or Order(s) as the Hon'ble Court may deem fit and proper in view of the facts and circumstances of the case and in the interest of justice."

3. The principal relief is to issue directions to the States/Union of India to strictly implement the decision rendered by this Court in In Re: Destruction of Public and Private Properties Vs. State of Andhra Pradesh & Ors.1 concerning the large-scale destruction of properties in the name of agitations, bandhs, hartals etc. The Court, after taking note of certain suggestions given by the Committees appointed by the Court inter alia recommended amendments to the Prevention of Damage to Public Property Act, 1984 (for short "the PDPP Act'), Criminal Procedure Code, 1973 and other criminal law statutes; and also set out guidelines to assess damages to property in the absence of a statutory framework. The relevant portion of the judgment is set out hereunder:

"4. Two reports have been submitted by the Committees. The matter was heard at length. The recommendations of the Committees headed by Justice K.T. Thomas and Mr. F.S. Nariman have been considered. Certain suggested guidelines have also been submitted by learned Amicus Curiae.

5. The report submitted by Justice K.T. Thomas Committee has made the following recommendations:

(i) The PDPP Act must be so amended as to incorporate a rebuttable presumption (after the prosecution established the two facets) that the accused is guilty of the offence.

(ii) The PDPP Act to contain provision to make the leaders of the organisation, which calls the direct action, guilty of abetment of the offence.

(iii) The PDPP Act to contain a provision for rebuttable presumption.

(iv) Enable the police officers to arrange videography of the activities damaging public property.

6. The recommendations of the Justice Thomas Committee have been made on the basis of the following conclusions after taking into consideration the materials.

In respect of (i)

7. "According to this Committee the prosecution should be required to prove, first that public property has been damaged in a direct action called by an organization and that the accused also participated in such direct action. From that stage the burden can be shifted to the accused to prove his innocence. Hence we are of the view that in situations where prosecution succeeds in proving that public property has been damaged in direct actions in which accused also participated, the court should be given the power to draw a presumption that the accused is guilty of destroying public property and that it is open to the accused to rebut such presumption. The PDPP Act may be amended to contain provisions to that effect."

In respect of (ii)

8. "Next we considered how far the leaders of the organizations can also be caught and brought to trial, when public property is damaged in the direct actions called at the behest of such organizations. Destruction of public property has become so rampant during such direct actions called by organizations. In almost all such cases the top leaders of such organisations who really instigate such direct actions will keep themselves in the background and only the ordinary or common members or grass root level followers of the organisation would directly participate in such direct actions and they alone would be vulnerable to prosecution proceedings. In many such cases, the leaders would really be the main offenders being the abettors of the crime. If they are not caught in the dragnet and allowed to be immune from prosecution proceedings, such direct actions would continue unabated, if not further escalated, and will remain a constant or recurring affair.

Of course, it is normally difficult to prove abetment of the offence with the help of direct evidence. This flaw can be remedied to a great extent by making an additional provision in PDPP Act to the effect that specified categories of leaders of the organization which make the call for direct actions resulting in damage to public property, shall be deemed to be guilty of abetment of the offence. At the same time, no innocent person, in spite of his being a leader of the organization shall be made to suffer for the actions done by others. This requires the inclusion of a safeguard to protect such innocent leaders."

In respect of (iii)

9. "After considering various aspects to this question we decided to recommend that prosecutions should be required to prove (i) that those accused were the leaders or office bearers of the organisation which called out the direct actions and (ii) that public property has been damaged in or during or in the aftermath of such direct actions. At that stage of trial it should be open to the court to draw a presumption against such persons who are arraigned in the case that they have abetted the commission of offence. However, the accused in such case shall not be liable to conviction if he proves that (i) he was in no way connected with the action called by his political party or that (ii) he has taken all reasonable measures to prevent causing damage to public property in the direct action called by his organisation."

In respect of (iv)

10. "The Committee considered other means of adducing evidence for averting unmerited acquittals in trials involving offences under PDPP Act. We felt that one of the areas to be tapped is evidence through videography in addition to contemporaneous material that may be available through the media, such as electronic media. With the amendments brought in the Evidence Act, through Act 21 of 2000 permitting evidence collected through electronic devices as admissible in evidence, we wish to recommend the following:

i) If the officer in charge of a police station or other law enforcing agency is of opinion that any direct action, either declared or undeclared has the potential of causing destruction or damage to public property, he shall avail himself of the services of video operators. For this purpose each police station shall be empowered to maintain a panel of local video operators who could be made available at short notices.

(ii) The police officer who has the responsibility to act on the information that a direct action is imminent and if he has reason to apprehend that such direct action has the potential of causing destruction of public property, he shall immediately avail himself of the services of the videographer to accompany him or any other police officer deputed by him to the site or any other place wherefrom video shooting can conveniently be arranged concentrating on the person/ persons indulging in any acts of violence or other acts causing destruction or damage to any property.

iii) No sooner than the direct action subsides, the police officer concerned shall authenticate the video by producing the videographer before the Sub Divisional or Executive Magistrate who shall record his statement regarding what he did. The original tapes or CD or other material capable of displaying the recorded evidence shall be produced before the said Magistrate. It is open to the Magistrate to entrust such CD/material to the custody of the police officer or any other person to be produced in court at the appropriate stage or as and when called for.

The Committee felt that offenders arrested for damaging public property shall be subjected to a still more stringent provision for securing bail. The discretion of the court in granting bail to such persons should be restricted to cases where the court feels that there are reasonable grounds to presume that he is not guilty of the offence. This is in tune with Section 437 of the Code of Criminal Procedure , 1973 and certain other modern Criminal Law statutes. So we recommend that Section 5 may be amended for carrying out the above restriction.

Thus we are of the view that discretion to reduce the minimum sentence on condition of recording special reasons need not be diluted. But, instead of "reasons" the court should record "special reasons" to reduce the minimum sentence prescribed.

However, we felt that apart from the penalty of imprisonment the court should be empowered to impose a fine which is equivalent to the market value of the property damaged on the day of the incident. In default of payment of fine, the offender shall undergo imprisonment for a further period which shall be sufficient enough to deter him from opting in favour of the alternative imprisonment."

11. The recommendations according to us are wholesome and need to be accepted.

12. To effectuate the modalities for preventive action and adding teeth to enquiry/investigation following guidelines are to be observed:

As soon as there is a demonstration organized:

(I) The organizer shall meet the police to review and revise the route to be taken and to lay down conditions for a peaceful march or protest;

(II)All weapons, including knives, lathis and the like shall be prohibited;

(III) An undertaking is to be provided by the organizers to ensure a peaceful march with marshals at each relevant junction;

(IV) The police and State Government shall ensure videograph of such protests to the maximum extent possible;

(V) The person in charge to supervise the demonstration shall be the SP (if the situation is confined to the district) and the highest police officer in the State, where the situation stretches beyond one district;

(VI) In the event that demonstrations turn violent, the officer-in-charge shall ensure that the events are videographed through private operators and also request such further information from the media and others on the incidents in question.

(VII) The police shall immediately inform the State Government with reports on the events, including damage, if any, caused .

(VIII) The State Government shall prepare a report on the police reports and other information that may be available to it and shall file a petition including its report in the High Court or Supreme Court as the case may be for the Court in question to take suo motu action.

13. So far as the Committee headed by Mr. F.S. Nariman is concerned the recommendations and the views are essentially as follows:

"There is a connection between tort and crime - the purpose of the criminal law is to protect the public interest and punish wrongdoers, the purpose of tort-law is to vindicate the rights of the individual and compensate the victim for loss, injury or damage suffered by him: however - the distinction in purpose between criminal law and the law of tort is not entirely crystal-clear, and it has been developed from case-to-case. The availability of exemplary damages in certain torts (for instance) suggest an overtly punitive function - but one thing is clear: tort and criminal law have always shared a deterrent function in relation to wrongdoing.

The entire history of the development of the tort law shows a continuous tendency, which is naturally not uniform in all common law countries, to recognise as worthy of legal protection, interests which were previously not protected at all or were infrequently protected and it is unlikely that this tendency has ceased or is going to cease in future.

There are dicta both ancient and modern that categories of tort are not closed and that novelty of a claim is no defence. But generally, the judicial process leading to recognition of new tort situations is slow and concealed for judges are cautious in making innovations and they seldom proclaim their creative role. Normally, a new principle is judicially accepted to accommodate new ideas of social welfare or public policy only after they have gained their recognition in the society for example in extra judicial writings and even then the decision accepting the new principle is supported mainly by expansion or restriction of existing principles which "gradually receive a new content and at last a new form'.

Where persons, whether jointly or otherwise, are part of a protest which turns violent, results in damage to private or public property, the persons who have caused the damage, or were part of the protest or who have organized will be deemed to be strictly liable for the damage so caused, which may be assessed by the ordinary courts or by any special procedure created to enforce the right.

This Committee is of the view that it is in the spirit of the observation in M.C. Mehta v. Union of India that this Court needs to lay down principles on which liability could be fastened and damages assessed in cases in which due to behaviour of mobs and riotous groups public and private property is vandalized and loss of life and injury is occasioned to innocent persons. These are clearly "unusual situations", which have arisen and likely to arise in future and need to be provided for in the larger interest of justice.

It is on the principles set out above that (it is suggested) that the Hon'ble Court should frame guidelines and venture to evolve new principles (of liability) to meet situations that have already arisen in the past and are likely to arise again in future, so that speedy remedies become available to persons affected by loss of life, injury and loss of properties, public or private, as a result of riots and civil commotions.

Damages in the law of torts in India include:

(a) damages based on the concept of restituto in interregnum to enable total recompense; and

(b) exemplary damages"

14. The basic principles as suggested by Nariman Committee are as follows which we find to be appropriate:

(1) The basic principle for measure of damages in torts (i.e. wrongs) in property is that there should be "restituto in interregnum' which conveys the idea of "making whole".

(2) Where any injury to property is to be compensated by damages, in settling the sum of money to be given for reparation by way of damages the Court should as nearly as possible get at that sum of money which will put the party who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.

(3) In this branch of the law, the principle of restitution in interregnum has been described as the "dominant" rule of law. Subsidiary rules can only be justified if they give effect to that rule.

(3.1) In actions in tort where damages are at large i.e. not limited to the pecuniary loss that can be specifically proved, the Court may also take into account the defendant's motives, conduct and manner of committing the tort, and where these have aggravated the plaintiff's damage e.g. by injuring his proper feelings of dignity, safety and pride - aggravated damages may be awarded. Aggravated damages are designed to compensate the plaintiff for his wounded feelings-they must be distinguished from exemplary damages which are punitive in nature and which (under English Law) may be awarded in a limited category of cases.

(3.2) "Exemplary damages" has been a controversial topic for many years. Such damages are not compensatory but are awarded to punish the defendant and to deter him and others from similar behaviour in the future. The law in England (as restated in Rookes v. Barnard affirmed in Cassell v. Broome) is that such damages are not generally allowed. In England they can only be awarded in three classes of cases (i) where there is oppressive, arbitrary or unconstitutional action by servants of the Government; (ii) where the defendants conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the claimant; and (iii) where such damages are provided by statute.

(3.3) In the decision in Kuddus v. Chief Constable of Leicestershire Constabulary, the most recent judgment of the House of Lords, the Law Lords did not say that in the future the award of exemplary damages should be restricted only in the cases mentioned in Rookes v. Barnard (as affirmed in Cassell v. Broome). Lord Nicholls in his speech at page 211 stated that:

"68. ...the essence of the conduct constituting the Court's discretionary jurisdiction to award exemplary damages is conduct which was such as to be an outrageous disregard of the claimant's rights.

(3.4) " In this committee's view, the principle that Courts in India are not limited in the law of torts merely to what English Courts say or do, is attracted to the present situation. This Committee is of the view that this Hon'ble Court should evolve a principle of liability - punitive in nature - on account of vandalism and rioting leading to damages/destruction of property public and private. Damages must also be such as would deter people from similar behaviour in the future: after all this is already the policy of the law as stated in the Prevention of Damage to Property Act, 1984, and is foreshadowed in the order of this Hon'ble Court dated 18-06-2007 making the present reference.

(3.5) In a Winfield and Jolowicz on Tort 17th Edn. (at pp. 948-49) the authors set out the future of exemplary damages by quoting from the decision in Kuddus v. Chief Constable of Leicestershire Constabulary where two Law Lords Lord Nicholls and Lord Hutton expressed the view that such damages might have a valuable role to play in dealing with outrageous behaviour. The authors point out that the boundaries between the civil and criminal law are not rigid or immutable and the criminal process alone is not an adequate mechanism to deter willful wrong-doing. The acceptability of the principle of compensation with punishment appears to have been confirmed by the Privy Council (in Gleaner Co Ltd. Vs. Abrahams AC at 54) where it was felicitously said that: (AC P.647, para 54)

"54. ...oil and vinegar may not mix in solution but they combine to make an acceptable salad dressing."

(3.6) The authors go on to say that exemplary damages certainly enjoy a continuing vitality in other common law jurisdictions, which, by and large, have rejected the various shackles imposed on them in England and extended them to other situations: thus punitive damages was held to be available in Australia "in cases of "outrageous" acts of negligence. The Law Commission of Australia has also concluded - after a fairly evenly balanced consultation-that exemplary damages should be retained where the defendant "had deliberately and outrageously disregarded the plaintiffs rights."

15. In the absence of legislation the following guidelines are to be adopted to assess damages:

(I) Wherever a mass destruction to property takes place due to protests or thereof, the High Court may issue suo motu action and set up a machinery to investigate the damage caused and to award compensation related thereto.

(II) Where there is more than one state involved, such action may be taken by the Supreme Court.

(III) In each case, the High Court or Supreme Court, as the case may be, 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.

(IV) An Assessor may be appointed to assist the Claims Commissioner.

(V) The Claims Commissioner and the Assessor may seek instructions from the High Court or Supreme Court as the case may be, to summon the existing video or other recordings from private and public sources to pinpoint the damage and establish nexus with the perpetrators of the damage.

(VI) The principles of absolute liability shall apply once the nexus with the event that precipitated the damage is established.

(VII) The liability will be borne by 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.

(VIII) Exemplary damages may be awarded to an extent not greater than twice the amount of the damages liable to be paid.

(IX) Damages shall be assessed for:

(a) damages to public property;

(b) damages to private property;

(c) damages causing injury or death to a person or persons;

(d) Cost of the actions by the authorities and police to take preventive and other actions.

(X) The Claims Commissioner will make a report to the High Court or Supreme Court which will determine the liability after hearing the parties.

16. The recommendations of Justice K.T. Thomas Committee and Mr F.S. Nariman Committee above which have the approval of this Court shall immediately become operative. They shall be operative as guidelines.

xxx

28. The present case is one in which guidelines are necessary:

(i) to the police to enforce statutory duties, and

(ii) to create a special purpose vehicle in respect of damages for riot cases.

15

This issue was examined by the Nariman Committee which considered:

"... where (in such cases) there is destruction/damage to properties and loss of lives or injuries to persons-

(i) the true measures of such damages,

(ii) the modalities for imposition of such damages, and..." (p. 2 of the Report).

29. These guidelines shall cease to be operative as and when appropriate legislation consistent with the guidelines indicated above are put in place and/or any fast track mechanism is created by the statute(s)."

(emphasis supplied)

After having noted the recommendations made by the Committees appointed by the Court, in paragraphs 16, 28 and 29 the Court declared that the stated recommendations had the approval of the Court and shall immediately become operative.

4. Taking a cue from this decision, the petitioners have prayed for the reliefs reproduced in paragraph 2 above. To buttress the reliefs in the writ petition, the petitioners have articulated some suggestions to ameliorate and curb the occurrence of such events. The suggestions given by the petitioners read thus:

"A. Regarding protection to freedom of speech and expression

1. Any protest against creative art including movies, drama, literature, music or the like, leading to an illegal ban of the same by use of force, threat or veiled threat etc. are not permissible. Any person or group who is aggrieved by any creative expression of any sort shall only seek legal remedy by resorting to the process of law.

2. State or authorities under state are not permitted to ban or prohibit any creative expression on the ground of law and order problem.

B. Regarding modalities for preventive action

3. The organizer of any public meeting, demonstration, procession, march etc. shall intimate the police and inform the route to be taken through e-mail or letter.

4. The police officer in charge, as far as possible, shall allow the request and may review and revise the route to be taken and lay down conditions for a peaceful march or protest. There shall be absolute prohibition of possession of knives, lathis, guns or any other weapons by anyone participating in the march.

5. The police shall ensure videography of such protests and the videos thus recorded shall be transmitted to a central server under copy to the police headquarters with date and time.

6. In the event of demonstrations turning violent, the officer-in-charge shall also gather such further information from the media and others on the incidents in question, and media and public shall support police by sharing such information.

7. The police shall immediately inform the State Government with reports on the events, including damage, if any, caused.

C. Regarding reporting of cases and police action

8. The Police shall maintain an online "cyber-information reception window' on its website/app enabling people to send instances of mob violence, destructive acts and hate speech in whatever form, including the spurious videos and face news. The police shall also make their own arrangements for photographing violent protests, and take immediate steps to find out the identity of the persons involved in such activity.

9. If any such incident is reported to Police, the police shall without delay register FIR with the names of the persons so identified and arrest those persons who are involved in the violent protests or hate speech, and follow the process of law.

10. Provision shall be made by the State Police for online registration of FIR and information regarding this facility shall be widely disseminated so that the common man is encouraged to report offences without facing the hurdles of procedural formalities. For constructive use of the facility, identity proof and verification via OTP to the registered mobile number or email id of the user may be mandated.

11. The police shall immediately conduct an investigation into the genuineness of the audio and video content within a period of three days and if contents are prima facie found to be true, the accused shall be arrested again (if already released on bail) who shall thereafter be entitled for bail only in the event of depositing the amount commensurate with the loss/damage, caused by such act/s directly and indirectly, as assessed by the police.

12. State shall take steps to establish sufficient number of forensic labs to verify the authenticity of social media content and audio/video content which may be in issue in such cases.

13. If any person or organization including a political party calls for any violent protest aiming to destroy private property, or calls for any protest that subsequently results in destruction of private property, the FIR shall be registered showing the names of the leaders or persons who expressly call for such protests. In cases where such a call was made through the official spokesperson or through the official social media account/page of the individual, political party or organization, the charges shall be filed against the chief office bearers of such political party or organization as the case may be.

14. Any person who through speech, statement or otherwise appeals or calls for

(a) violent protests or

(b) destruction of property or

(c) use of force to stop citizens from exercising their fundamental rights or

(d) incitement to hatred

Shall be immediately arrested and prosecuted under relevant provisions of law including S.153A, 295A read with section 298 IPC as the case may be.

15. The progress report of the investigation in the above mentioned cases shall be made to the District Collector/Chief Judicial Magistrate and shall also be uploaded on the website of the Director General of Police, on a weekly basis.

16. If anyone is acquitted in any such case, the State shall file an appeal against the acquittal.

17. The judgment of acquittal or conviction shall be uploaded on the website of the police where the progress report of investigation is uploaded.

D. Regarding liability of organizations, groups etc.

18. If any protest that resulted in destruction of property was organized by a group or by members of any organization, the office bearers of such group or organization shall within 24 hours of the incident, report to the police station/s in whose jurisdiction the disruptive activities took place.

19. The office bearers shall give all information about such protest to the police, including the call for protest and the details of the local leaders of such organization.

20. They may make a statement disowning the act of such people who were involved in such protest and in case such a statement is given, such of the members who are disowned shall be expelled from the organization with immediate effect.

21. In case no statement of disownment is tendered or disowned members are not expelled, the office bearers and leaders of such organization shall also be liable for prosecution under 120B of the IPC .

22. Any glorification or patronization of hate speech or violence or accused by any person by means of words or acts of any form shall also be liable for contempt of court.

E. Regarding accountability of police

23. If the police fail to register FIR or conduct investigation and submit charge sheet within a period of 90 days in any of the above mentioned instances, the Director General of Police shall be personally liable for contempt of court.

24. Departmental action shall be initiated against those police officers who are apparently inactive during such protests and do not take necessary action as required within a period of one month from the date of incident.

25. Any delay in taking appropriate action by the police should be explained with reasons by the DGP and necessary communication to this effect shall be made through public notice including through official website of the Police.

F. Regarding claims tribunal and award of compensation

26. The owners of private property that is destroyed by mob violence/protestors or their representatives in interest shall be entitled to claim compensation for destruction caused to their property, movable and immovable. The claims for compensation for destruction of private property and the claim for restoration costs shall be filed before a Claims Tribunal which shall be constituted by the State Government to investigate the damage caused and to award compensation related thereto. The Claims Tribunal shall comprise of a sitting or retired High Court judge or a sitting or retired District judge (Chairperson) and such other members (Assessors) as may be prescribed by the government. The Tribunal shall follow a time bound summary procedure as may be prescribed by the Government so that the claims are disbursed within 6 months from the occurrence.

27. The State Government and Director General of Police shall hand over to the Claims Tribunal the video or other recordings from private and public sources that would enable the Claims Tribunal to pinpoint the damage and establish nexus with the perpetrators of the damage.

28. The principles of absolute liability shall apply once the nexus with the event that precipitated the damage is established.

29. Damages shall be assessed for:

(a) damages to public property;

(b) damages to private property;

(c) damages causing injury or death to a person or persons;

(d) Cost of the actions by the authorities and police to take preventive and other actions.

30. Exemplary damages may be awarded to an extent not greater than twice the amount of the damages liable to be paid.

31. The Tribunal shall specify in its award the amount towards compensation, amount towards the costs for restoration of property and exemplary damages separately.

32. The liability to pay compensation shall be apportioned by the Tribunal amongst the following persons:

(i) persons who actually committed the act of destruction

(ii) persons who made an appeal for such destruction

(iii) the office bearers of the organizations in which such persons are members whereof, in case the organizations do not make statement of disownment and expel such members.

33. The person/s who is/are declared liable by the Tribunal shall also be ordered to pay 10% of the amount awarded as costs for meeting the expenses of the Tribunal.

34. It shall be the responsibility of the State Government to restore all properties so destroyed to its original position within a period of 12 months. The cost shall be realized from persons declared liable by the Tribunal as arrears of land revenue.

G. Protection of non-violent democratic form of processions, march and protests

35. All democratic protests without violence, against the government policy/action or for social causes shall be duly respected and shall not incur any liability.

36. Raising slogans against the government or its leaders shall not be treated as hate speech or as an offence. The protesters shall have the right to carry posters, banners, effigies etc. to show their mark of protest."

5. We have heard Mr. P.V. Dinesh, learned counsel for the petitioners and Mr. K.K. Venugopal, learned Attorney General for India, as also Mr. Aman Lekhi, learned Additional Solicitor General, on behalf of the respondent No.1 Union of India and the respondent States.

6. Mr. Venugopal is unequivocal in his submission that violent protests which lead to loss of life and damage to public and private properties are against the spirit of democracy. He submits that pursuant to the judgment in In Re: Destruction of Public and Private Properties (supra), the Union of India has advised the respondent states to follow the guidelines laid down therein vide letter dated 6th May, 20132. Further, a Bill is being introduced to bring in certain amendments to the PDPP Act in line with the said guidelines, which is currently under

discussion with the stakeholders. The Union of India vide letter dated 26th March, 20183 has also requested the States and Union Territories to appoint one or more district/additional district judges, in consultation with their respective High Courts, to deal with cases of damage to public property on a whole-time or part-time basis. Pending the outcome of the aforesaid discussions, and as an interim measure, the learned Attorney General has also given certain written suggestions to increase accountability and timelines for law-enforcement bodies in relation to such acts of mob violence. We shall advert to the proposed amendments to the PDPP Act and the written suggestions shortly.

7. The present petition highlights the disconcerting rise in the protests and demonstrations by private entities targeting, amongst others, exhibition of films and social functions and including sections of people, on moral grounds, in particular, using threats and actual violence. In addition to being patently illegal and unlawful, such acts of violence highlight a deeper malaise, one of intolerance towards others' views which then results in attempts to suppress alternate view points, artistic integrity and the freedom of speech and expression guaranteed by the Constitution of India. Indeed, the people who perpetrate such actions, especially against private parties, do so without fear of consequence and reprisal, probably believing that private parties do not have the wherewithal to hold them accountable for such actions.

In such situations, the State must step in and perform its duty by taking measures to prevent such actions from occurring in the first place, ensuring that law-enforcement agencies exercise their power to bring the guilty parties to book and imposing time-bound and adequate punishment for any lapses. This Court has time and time again underscored the supremacy of law and that one must not forget that administration of law can only be done by law-enforcing agencies recognised by law. Nobody has the right to become a self-appointed guardian of the law and forcibly administer his or her own interpretation of the law on others, especially not with violent means. Mob violence runs against the very core of our established legal principles since it signals chaos and lawlessness and the State has a duty to protect its citizens against the illegal and reprehensible acts of such groups. Very recently, we have dealt with almost similar grievances in Tehseen S. Poonawalla Vs. Union of India & Ors.4

8. We must first advert to the exposition in In Re: Destruction of Public and Private Properties (supra), and discern as to whether the guidelines enunciated therein are adequate to meet the challenges under consideration and as to what extent the said recommendations have been implemented. We also have to examine whether this Court ought to direct any additional measures.

9. There is a broad consensus that the recommendations made and directions given in In Re: Destruction of Public and Private Properties (supra), at paragraph 3 hereinabove are comprehensive to deal with the issue of large-scale destruction of private and public properties which unwinds during violent protests and demonstrations. We find that the Committee's recommendations noted in the said judgment traverse the length and breadth of the issue at hand and, if implemented in their entirety, would go a long way in removing the bane of violence caused against persons and property. As far as implementation of the said recommendations, is concerned, and as stated earlier, the learned Attorney General's submission is that the Union is mindful of the dictum in In Re: Destruction of Public and Private Properties (supra), and has advised the States to follow the same in its letter and spirit and also drafted a bill for initiating legislative changes in conformity with the recommendations of this Court, namely, The Prevention of Damage to Public Property (Amendment) Bill, 2015, which is currently being examined in consultation with the Ministry of Law and Justice. The Bill reads as under:

"ANNEXURE - 1

THE PREVENTION OF DAMAGE TO PUBLIC PROPERTY (AMENDMENT) BILL, 2015

 

A BILL

 

 

to amend the Prevention of Damage to Public Property Act, 1984

 

 

BE it enacted by Parliament in the Sixty-sixth year of the Republic of India as follows:-

 

Short title and commencement.

1. (1) This Act may be called the Prevention of Damage to Public Property (Amendment) Act

 

 

(2) It shall come into force on such date as the Central Government may

 

Amendment of Act 3 of 1984.

2. In the Prevention of Damage to Public Property Act, 1984 (hereinafter referred to as the principal Act), after the words "and with fine", wherever they occur, the words "which shall be equivalent to the market value of the public property damaged" shall be inserted.

3 of 1984

Amendment of Section 2.

3. In the principle Act, in section 2, after clause (a), the following clause shall be inserted, -namely :-

 

 

(aa) "prescribed" means prescribed by rules made under this Act;".

 

Amendment of Section3.

4. In section 3 of the principal Act, in sub-section (2), in the proviso, for the words "for reasons", the words "for special reasons" shall be substituted.

 

Insertion of new sections 4A, 4B, 4C and 40 [sic]

5. After section 4 of the principal Act the following sections shall be inserted, namely :-

 

Presumption against accused.

"4A. Where an offence under this Act has been committed and it is shown that the public property has been damaged, as direct consequence of such offence and the accused-participated in the commission of such offence, it shall be presumed unless the contrary is shown, that the accused had committed such offence.

 

Abetment of

4B. Where damage to public property is caused in consequence of demonstration, hartal or bandh called by any organization, the office-bearers of such organization shall be deemed to be guilty of the commission of the offence of abetment of an offence punishable under this Act and shall be liable to be proceeded against and punished accordingly.

 

 

Provided that nothing contained to this Section shall render may such office bearer liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that be had exercised all due diligence to prevent the commission of such offence.

 

Punishment for abetment of mischief

4C. Whoever abets an offence punishable under this Act shall be punished with the punishment provided for that offence under this Act.

 

Procedure for videography of incidents of Demonstration.

4D. Where a call for demonstration, hartal or bandh has been given by an organization and the officer-no charge of a police station has reasons to believe that damage to the public property is likely to be caused or there is imminent danger of such damage, he shall,-

(i) Make such arrangements for the videography of the area where the demonstration, hartal or bandh is proposed to be held;

(ii) Deposit the soft copies of videography, in such manner, with the concerned Sub-Divisional Magistrate or Executive Magistrate who may entrust the same to said police officer or any other person;

(iii) Get, the statement of the Videographer recorded before the concerned Sub-Divisional Magistrate or Executive Magistrate in such manner, as may be prescribed.".

 

Amendment of Section5.

6. In section 5 of the principal Act-

 

 

(i) After the words and figure "or section 4", the words and figure "or section 4B" shall be inserted;

(ii) After the words "for such release", the words "and there are reasonable grounds to believe that he is not guilty of the said offence" shall be inserted.

 

Insertion of new sections 6A and 6B

7. After section 6 of the principal Act, the following sections shall be inserted, namely :-

 

Power to make rules

"6A (1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Act,

 

 

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may "provide for all or any - of the following matters, namely :-

 

 

(a) the arrangement for videography under section 4D; and

(b) the manner of depositing the soft copies of videography and recording the statement of the videographer under section 4D.

 

Rules to be laid before Parliament

6B. Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days, which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the ride should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule." "

 

For the time being, we do not wish to comment on the efficacy of the proposed legislative changes including as to whether it would fully address the points noted in the guidelines/recommendations in In Re: Destruction of Public and Private Properties (supra). We keep that issue open to be decided in appropriate proceedings if and when the occasion arises. We hope that the said Bill will be taken to its logical end in the right earnest.

10. On the issue of whether additional measures need to be introduced, the learned Attorney General has also made certain suggestions which can be implemented as interim measures, pending the outcome of the aforestated Bill, to fasten accountability and prescribe timelines for the law-enforcement agencies. The same are set out hereunder:

"12. While the Union of India is still considering the amendments, as an interim measure, it is suggested that this Court may consider issuing the following directions:

a. The offence is covered under Section 3 of the PDPP Act, which provides that whoever commits mischief by doing any act in respect of any public property shall be punished with imprisonment and fine. Mischief has been defined under Section 425 of the Indian Penal Code as - "whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief".

b. This Court may consider the example of the Delhi Development Authority, where, in order to deal with illegal encroachments, the DDA has divided the city into various zones and placed them under different officers who would be held responsible in case there were building law violations in their respective zones. This has had the result of improving accountability and reduced instances of illegal encroachment.

c. The liability for compensation has to be fixed on the organizer(s) irrespective of whether he was himself the perpetrator of the act which caused the damage.

d. In addition, the actual perpetrators who caused the damage will also be liable to pay compensation.

e. Accordingly, the State Governments may be directed to pin the responsibility of maintaining law and order during such protests, bands, etc. on the Senior Superintendent of police in charge of that district. If this is done, in all future cases, the Courts can seek a response directly from the SSP regarding video recordings, details of FIRs filed, steps taken etc.

f. In addition, the Court may direct, each police station to maintain a panel of local video operators who could be made available at short notices to videograph the incidents of violence and damage to public property etc.

g. Further, the States can consider setting up helplines to specifically deal with instances of violence or damage to property caused during such protests, and have a force that immediately deals with complaints made on such helplines."

11. At this stage, it would be apposite to also consider the judgment rendered by a three-Judge bench of this Court in Tehseen S. Poonawalla (supra), where this Court had to deal with a specific type of mob violence and the resulting restraints on personal liberty and free speech. In that case, the petitioners had prayed for a writ to take measures to curb incidents of lynching and mob violence in respect of cattle trade and related activities. At the macro level, the dispensation to tackle the incidents of targeted violence and commission of offences affecting the human body and against private and public property by mobs operating under the garb of self-assumed and self-appointed protectors of law would be similar to that of damage caused due to mob violence for any other cause. Taking note of burgeoning instances of vigilantism and lynching, this Court propounded that states had the duty to ensure that individuals or groups did not take the law into their own hands to prevent untoward incidents and to prevent crime which may include damage caused to property. In that context, the Court observed:

"19. Mob vigilantism and mob violence have to be prevented by the governments by taking strict action and by the vigil society who ought to report such incidents to the state machinery and the police instead of taking the law into their own hands. Rising intolerance and growing polarisation expressed through spate of incidents of mob violence cannot be permitted to become the normal way of life or the normal state of law and order in the country. Good governance and nation building require sustenance of law and order which is intricately linked to the preservation of the marrows of our social structure. In such a situation, the State has a sacrosanct duty to protect its citizens from unruly elements and perpetrators of orchestrated lynching and vigilantism with utmost sincerity and true commitment to address and curb such incidents which must reflect in its actions and schemes.

20. Hate crimes as a product of intolerance, ideological dominance and prejudice ought not to be tolerated; lest it results in a reign of terror. Extra judicial elements and non-State actors cannot be allowed to take the place of law or the law enforcing agency. A fabricated identity with bigoted approach sans acceptance of plurality and diversity results in provocative sentiments and display of reactionary retributive attitude transforming itself into dehumanisation of human beings. Such an atmosphere is one in which rational debate, logical discussion and sound administration of law eludes thereby manifesting clear danger to various freedoms including freedom of speech and expression. One man's freedom of thought, action, speech, expression, belief, conscience and personal choices is not being tolerated by the other and this is due to lack of objective rationalisation of acts and situations. In this regard, it has been aptly said:- "Freedom of speech is a principal pillar of a free government; When this support is taken away, the constitution of a free society is dissolved and tyranny is erected on its ruins."

21. Freedom of speech and expression in different forms is the élan vital of sustenance of all other rights and is the very seed for germinating the growth of democratic views. Plurality of voices celebrates the constitutionalist idea of a liberal democracy and ought not to be suppressed. That is the idea and essence of our nation which cannot be, to borrow a line from Rabindranath Tagore, "broken up into fragments by narrow domestic walls" of caste, creed, race, class or religion. Pluralism and tolerance are essential virtues and constitute the building blocks of a truly free and democratic society. It must be emphatically stated that a dynamic contemporary constitutional democracy imbibes the essential feature of accommodating pluralism in thought and approach so as to preserve cohesiveness and unity. Intolerance arising out of a dogmatic mindset sows the seeds of upheaval and has a chilling effect on freedom of thought and expression. Hence, tolerance has to be fostered and practised and not allowed to be diluted in any manner.

22. In S. Rangarajan v. P. Jagjivan Ram and others, K. Jagannatha Shetty, J., although in a different context, referred to the decision of the European Court of Human Rights in Handyside v. United Kingdom wherein it has been held thus in the context of Article 10 of the European Convention on Human Rights (ECHR):-

"The court's supervisory functions oblige it to pay the utmost attention to the principles characterizing a "democratic society'. Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to Article 10(2), it is applicable not only to "information' or "ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society'."

23. In a rights based approach to constitutional legitimacy, the right to life and liberty is considered paramount and, therefore, democratic governments must propel and drive towards stronger foothold for liberties so as to ensure sustenance of higher values of democracy thereby paving the path for a spontaneous constitutional order. Crime knows no religion and neither the perpetrator nor the victim can be viewed through the lens of race, caste, class or religion. The State has a positive obligation to protect the fundamental rights and freedoms of all individuals irrespective of race, caste, class or religion. The State has the primary responsibility to foster a secular, pluralistic and multiculturalistic social order so as to allow free play of ideas and beliefs and co-existence of mutually contradictory perspectives. Stifling free voices can never bode well for a true democracy. It is essential to build societies which embrace diversity in all spheres and rebuild trust of the citizenry in the State machinery."

(emphasis supplied)

12. Having observed thus, the Court issued extensive guidelines in the nature of preventive, remedial and punitive measures to curb incidents of mob lynching and vigilantism as set out hereinbelow:

"40. In view of the aforesaid, we proceed to issue the following guidelines:-

A. Preventive Measures

(i) The State Governments shall designate, a senior police officer, not below the rank of Superintendent of Police, as Nodal Officer in each district. Such Nodal Officer shall be assisted by one of the DSP rank officers in the district for taking measures to prevent incidents of mob violence and lynching. They shall constitute a special task force so as to procure intelligence reports about the people who are likely to commit such crimes or who are involved in spreading hate speeches, provocative statements and fake news.

(ii) The State Governments shall forthwith identify Districts, Sub-Divisions and/or Villages where instances of lynching and mob violence have been reported in the recent past, say, in the last five years. The process of identification should be done within a period of three weeks from the date of this judgment, as such time period is sufficient to get the task done in today's fast world of data collection.

(iii) The Secretary, Home Department of the concerned States shall issue directives/advisories to the Nodal Officers of the concerned districts for ensuring that t