Damage to property during protests, riots: Yogi govt working on special law to penalise vandals

The Yogi Adityanath government is in the process of enacting a comprehensive special law to deal with damage to both public and private property in future, a senior

The Yogi Adityanath government is in the process of enacting a comprehensive special law to deal with damage to both public and private property in future, a senior state government official said.

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The move comes amid a controversy over cost recovery notices served on protesters accused of vandalism during the anti-Citizen Amendment Act demonstrations in various cities across Uttar Pradesh.

The proposed law prescribes stringent deterrent punishment for offences related to destruction of property during riots, demonstrations, strikes etc, and fixes the accountability of leaders and office bearers of the political parties and organisations who call for such protests, besides awarding compensation for damage to public or private property.

The home department has already moved a proposal in this regard and the government may table the bill for the enactment of the law to be named ‘The Uttar Pradesh Prevention of Damage to Public and Private Property Act 2020, in the current budget session of the state legislature after the law department vets the proposal.

Confirming the move, principal secretary, justice, and legal remembrancer (LR), JP Singh said, “The proposal for enactment of prevention of damage to public and private property law is under consideration”.

He, however, expressed ignorance if the bill in this regard would be tabled in the Vidhan Sabha/Vidhan Parishad during the current session only. People in the home department who were aware of the issue said work on the proposed law was in full swing.

But any act of vandalism that has already taken place will not come under the ambit of the new law because of the legal principle that forbids a criminal law from coming into force with a retrospective date.

“The home department is preparing a separate mechanism in keeping with the Supreme Court’s guidelines to tackle the issue related to damage to public property in December last year and subsequent recovery notices sent to the accused,” home department sources disclosed.

After the anti-CAA protests turned violent in December last year with protesters allegedly vanadalising and torching public property, buses and police stations in several cities, including Lucknow, the Uttar Pradesh government identified the suspects and issued notices to them, seeking to recover the cost of property damaged.

SUPREME COOURT GUIDELIENS

The government appeared to have relied on the Allahabad high court’s 2011 judgment in Mohammad Shujauddin vs State of UP & Others to do recovery from the accused, ignoring the Supreme Court’s guidelines issued in 2009 and reiterated two years ago.

Prominent criminal lawyer SK Kalia said the high court’s 2011 judgment was apparently not based on the guidelines that the apex court issued prescribing the procedure for assessment of damages and recovery of cost. Now, many accused have challenged the recovery notices on the same ground and the high court has granted a stay as well in some cases.

Accepting the recommendations of justice KT Thomas committee and FS Nariman committee, the Supreme Court on April 16, 2009 issued certain guidelines and observed that the recommendations would immediately became operative as guidelines and would cease to be operative as and when appropriate legislation consistent with the guidelines were put in place and/or any fast track mechanism was created by the statutes in light of the same guidelines.

The Supreme Court observed that in the absence of legislation the following guidelines were 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 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.

“The government has, however, vested the power of assessing damages and issuing recovery notices in the additional district magistrates after anti-CAA protests on basis of the Allahabad high court 2011 judgment and this is legally not tenable,” a law department officer said, adding, “The Supreme Court even reiterated its guidelines in the Tehseen S Poonawala vs Union of India case of July 17, 2018 as well as in the Kodungallur Film Society vs Union of India, October 1, 2018.”

LAW COMMISSION’S RECOMMENDATION IN 2009

The proposal for enacting a comprehensive law has been pending in UP since the apex court issued guidelines in 2009.

The law commission, then headed by justice VC Mishra, even submitted its report on the proposed bill to the then chief minister Mayawati on July 8, 2009

The report recommended enactment of a ‘special law’ by the legislature of the state entitled, ‘The Uttar Pradesh Prevention of Damage to Public and Private Property Act 2009,’ to curb acts of vandalism and damage to public and private property, including destruction and damage caused during riots and public commotion.

It recommended, among others, the provision for deterrent punishment for offences and making such offences non-bailable, a special provision for bail, fixing accountability of leaders and office bearers of political parties or organisations and to award compensation, for damage to property, to the affected persons.

Private persons, the commission recommended, could file claims for compensation for damage to their property to the claims tribunal.

People aware of the issue said the law being enacted now was likely to incorporate most the law commission’s over a decade old recommendations.