KODUNGALLUR FILM SOCIETY & ANR. versus UNION OF INDIA & ORS.
[2018] 12 S.C.R. 695, Supreme Court of India, 2018
Outcome: Disposed off
Segment: Arguments
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KODUNGALLUR FILM SOCIETY & ANR.
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 330 of 2018)
OCTOBER 01, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D. Y. CHANDRACHUD, JJ.]
Constitution of India: Art. 32 – Eruption of mob violence,
protests and demonstrations across the nation in the recent past,
against cultural programmes and establishments – Resulting in
damage to public and private properties arising out of such violence
– Submission that law and order problems arose out of the release
of several films, especially film Padmaavat – PIL seeking issuance
of directions to the respondents to strictly follow and implement the
guidelines formulated by this Court in In Re: Destruction of Public
and Private Properties case to prevent destruction of public and
private properties in mass protests and demonstrations – Held: These
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 – 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 – Dispensation for preventing
occurrences of such crimes or remedial measures and punitive
measures would vest in the same police in the State – Therefore,
comprehensive structure to be evolved in the respective
States so
that the issues of accountability and efficiency in curbing incidents
of peaceful protests turning into mob violence, causing damage to
property including investigation, remedial and punitive measures,
are duly addressed – Dispensation can be similar to Tehseen
Poonawalla case – Recommendations in addition to In Re Destruction
of Public and Private Properties case, issued under the following
heads: structural and preventive measures, remedies to minimize
the impending mob violence, liability of person causing violence,
responsibility of police officials and compensation – Central and
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State governments to implement the recommendations within the
stipulated period.
Disposing of the writ petition, the Court
HELD: 1.1 There is a 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. [Para 7] [723-C-D; 724-
A-D]
1.2 There is a broad consensus that the recommendations
made and directions given in In Re: Destruction of Public and
Private Properties case, at paragraph 3 are comprehensive to deal
with the issue of large-scale destruction of private and public
properties which unwinds during violent protests and
demonstrations. The Committee‘s recommendations noted in the
said judgment traverse the length and breadth of the issue at
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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 the Attorney General‘s submission is that the
Union is mindful of the dictum in In Re: Destruction of Public
and Private Properties case, 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. [Para 9]  [724-
G-H; 725-A]
1.3 This Court is conscious of the fact that the crimes
committed by groups of self-appointed keepers of public morality
may be on account of different reasons or causes, but the
underlying purpose of such group of persons is to exercise
unlawful power of authority and that too, without sanction of State
and create fear in the minds of the public or, in a given situation,
section of the community. The dispensation for preventing
occurrences of such crimes or remedial measures and punitive
measures would vest in the same police in the State. Therefore,
a comprehensive structure will have to be evolved in the
respective States so that the issues of accountability and efficiency
in curbing incidents of peaceful protests turning into mob violence,
causing damage to property including investigation, remedial and
punitive measures, are duly addressed. While doing so, the
directions given by this Court in In Re: Destruction of Public and
Private Properties’s case, Shakti Vahini’s case and Tehseen S.
Poonawalla’s case, must be borne in mind. [Paras 15] [742-A-C]
1.4 There are overlapping areas of directions which albeit
apply to the situations referred to in the concerned decision. For
the purpose of the instant writ petition, it is observed that the
dispensation can be similar to the one decided recently in Tehseen
Poonawalla case, for which reason the guidelines delineated in
the said decision must apply proprio vigore in respect of peaceful
protests turning into mob violence, causing damage to public and
private properties. Ex abundanti cautela, it is clarified that similar
interim measures would operate in respect of any peaceful protest
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turning into mob violence, causing loss of life or damage to public
and private properties, including violence designed to instill fear
in the minds and terrorise the common man, in the absence of
any law to that effect. [Para 16]  [742-D-F]
1.5 The recommendations/directions elucidated hereunder
are not exhaustive but only to set out broad contour of the
measures required to be taken and are in addition to the
recommendations/directions given in In Re: Destruction of Public
and Private Properties case.
A. Structural and preventive measures
a) In addition to the responsibilities ascribed to the Nodal
Officer(s) as set out in Tehseen Poonawalla case, the said
Nodal Officer(s) would also be responsible for creating
and maintaining a list containing the various cultural
establishments, including theatres, cinema halls, music
venues, performance halls and centres and art galleries
within the district, and pin point vulnerable cultural
establishments and property which have been attacked/
damaged by mob violence over the past 5 (five) years.
This list would be updated on a regular basis to account
for any new openings/closings of establishments.
b) In addition to the prohibition against weaponry laid down
in paragraph 12 (II) of In Re: Destruction of Public and
Private Properties case, any person found to be carrying
prohibited weaponry, licensed or otherwise, during
protests/demonstrations would prima facie be presumed
to have an intention to commit violence and be proceeded
in that regard as per law.
c) The State governments should set up Rapid Response
Teams preferably district-wise which are specially trained
to deal with and can be quickly mobilized to respond to
acts of mob violence. These teams can also be stationed
around vulnerable cultural establishments.
d) The State governments should set up special helplines
to deal with instances of mob violence.
e) The State police shall create and maintain a cyber-
information portal on its website and on its internet-based
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application(s) for reporting instances of mob violence and
destruction of public and private properties. [Para 16]
[742-F-H; 743-A-D]
B. Remedies to minimize, if not extirpate, the impending
mob violence
a) The Nodal Officer(s) will coordinate with local
emergency services, including police stations, fire
brigades, hospital and medical services and disaster
management authorities during incidents of mob violence
in order to have a comprehensive and consolidated
response to the situation.
b) The authorities must consider the use of non-lethal
crowd-control devices, like water cannons and tear gas,
which cause minimum injury to people but at the same
time, act as an effective deterrent against mob force.
c) The authorities must ensure that arrests of miscreants
found on the spot are done in the right earnest.
d) The Nodal Officer(s), may consider taking appropriate
steps as per law including to impose reasonable
restrictions on the social media and internet-based
communication services or mobile applications, by
invoking enabling provisions of law during the relevant
period of mob violence, if the situation so warrants.
e) The Nodal Officer(s) must take coordinated efforts and
issue messages across various audio-visual mediums to
restore peace and to stop/control rumours. This can
extend to issuing communications on local TV channels,
radio stations, social media like Twitter etc. [Para 16]  [743-
E-H; 744-A-B]
C. Liability of person causing violence
a) If
a call to violence results in damage to property, either
directly or indirectly, and has been made through a
spokesperson or through social media accounts of any
group/organization(s) or by any individual, appropriate
action should be taken against such person(s) including
under Sections 153A, 295A read with 298 and 425 of the
Penal Code, 1860.
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b) In instances where a group/organisation has staged a
protest or demonstration resulting in violence and damage
to property, the leaders and office bearers of such group/
organisation should physically present themselves for
questioning, on their own, within 24 (twenty four) hours,
in the police station within whose jurisdiction the violence
and damage occurred. Any such person(s) failing to present
himself/herself in such manner without any sufficient reason
should be proceeded against as a suspect and legal process
must be initiated forthwith against him/her including for
being declared an absconder in accordance with law.
c) A person arrested for either committing or initiating,
promoting, instigating or in any way causing to occur any
act of violence which results in loss of life or damage to
property may be granted conditional bail upon depositing
the quantified loss caused due to such violence or
furnishing security for such quantified loss. In case of more
than one person involved in such act of violence, each
one of them shall be jointly, severally and vicariously liable
to pay the quantified loss. If the loss is yet to be quantified
by the appropriate authority, the judge hearing the bail
application may quantify the amount of tentative damages
(which shall be subject to final determination thereof by
the appropriate authority) on the principle stated in
paragraph 15 of the decision in In Re: Destruction
of Public
and Private Properties case, after hearing the submissions
of the State/agency prosecuting the matter in that regard.
[Para 16]  [744-C-H]
D. Responsibility of police officials
a) When any act of violence results in damage to property,
concerned police officials should file FIRs and complete
investigation as far as possible within the statutory period
and submit a report in that regard. Any failure to file FIRs
and conduct investigations within the statutory period
without sufficient cause should be considered as dereliction
of duty on behalf of the concerned officer and can be
proceeded against by way of departmental action in right
earnest.
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b) Since the Nodal Officer(s) holds the overall
responsibility in each district to prevent mob violence
against cultural establishments and against property, any
unexplained and/or unsubstantiated delay in filing FIRs
and/or conducting investigations in that regard should also
be deemed to be inaction on the part of the said Nodal
Officer(s).
(c) With reference to the videography mentioned in
paragraphs 5(iv), 10 and 12 of In Re: Destruction of Public
and Private Properties case, the officer-in-charge should
first call upon from the panel of local video operators
maintained by the concerned police station to video-record
the events. If the said video operators are unable to record
the events for whatever reason or if the officer-in-charge
is of the opinion that supplementary information is
required, then he/she can also call upon private video
operators to record the events and request the media for
information on the incident in question, if need be. Status
reports of the investigation(s)/trial(s) concerning such
offences, including the results of such trial(s), shall be
uploaded on the official website of the concerned State
police on a regular basis. In the event of acquittal of any
person(s) accused of committing such offences, the Nodal
Officer(s) must coordinate with the Public Prosecutor for
filing appeal against such acquittal, in the right earnest.
[Para 16]  [745-A-B]
E. Compensation
a) The person/persons who has/have initiated, promoted,
instigated or any way caused to occur any act of violence
against cultural programmes or which results in loss of
life or damage to public or private property either directly
or indirectly, shall be made liable to compensate the victims
of such violence.
b) Claims arising out of such acts of violence should be
dealt with in the manner prescribed in In Re: Destruction
of Public and Private Properties’s case.
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c) This compensation should be with regard to the loss of
life or damage done to any public or private properties,
both movable and immovable. [Para 16] [745-G-H; 746-
A-B]
1.4 The recommendations have to be implemented by the
Central and State governments as expeditiously as possible,
preferably within the stipulated period. [Para 18]  [746-B-C]
In Re: Destruction of Public and Private Properties Vs.
State of Andhra Pradesh & Ors. (2009) 5 SCC 212 :
[2009] 6 SCR 439; Tehseen S. Poonawalla Vs. Union
of India & Ors. AIR 2018 SC 3354; Shakti Vahini Vs.
Union of India and Ors.(2018) 7 SCC 192 – relied on.
Koshy Jacob Vs. Union of India and Ors. (2018) 11
SCC 756 – referred to.
Case Law Reference
[2009] 6 SCR 439
relied on
Para 9, 15, 16
AIR 2018 SC 3354
relied on
Para 7, 15
(2018) 11 SCC 756
referred to
Para 13
(2018) 7 SCC 192
relied on
Para 15
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil)
No. 330 of 2018
Under Article 32 of the Constitution of India.
P. V. Dinesh, Adv. for the petitioners.
K. K. Venugopal, AG, Aman Lekhi, ASG, Rohit Bhat, Ms. Madhavi
Diwan,  Ms. Charanya L. for B.V. Balaramdas, Advs. for the
respondents.
The Judgment of the Court was delivered by
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.
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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
KODUNGALLUR FILM SOCIETY & ANR. v. U.O.I. & ORS.
[A. M. KHANWILKAR, J.]
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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
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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
1 (2009) 5 SCC 212
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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.”
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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.
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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
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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;
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(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
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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
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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.
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(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
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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.
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(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.
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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.
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.
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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
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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
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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
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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.
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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
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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
2  “ANNEXURE-2
No.11034/01/2013-IS-IV
Government of India Ministry of Home Affairs IS-I Division North Block, New Delhi the 6th May, 2013
To The Chief Secretaries
All State Govts./UTs
Subject:
Destruction and Damage to Public Properties in the name of agitations, Bandhs, Hartals etc.-
guidelines for prevention of such destructive activities – regarding.
Sir/madam
The Hon’ble Supreme Court of India taking a serious note of various instances where there was
large scale destruction of public and private properties in the name of agitations, bandhs hartals and the like
vide order dated 16.04.2009 in W.P. (Crl.) No.77/2007 in the matter of Destruction of Public & Private
Properties Vs. State of A.P. and Ors. directed that the following guidelines should be observed as soon as
there is a demonstration organized to effectuate the modalities for preventive action and adding teeth to
enquiry/investigation:-
(i)
If the officer in charge of a police station or other law enforcing agency is of the 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 video-grapher 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 of damage to any property.
(iii) No sooner than the direct action subsides, the police officer concerned shall authenticate the video
by producing the video grapher before the Sub divisional or Executive Magistrate who shall record
his statement regarding what he did for preparing the video graph. 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.
(iv) 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.
(v)
All weapons, including knives, lathis and the like shall be prohibited.
(vi) An undertaking is to be provided by the organizers to
ensure a peaceful march with marshals at each
relevant junction.
(vii) The police and State Government shall ensure videography of such protests to the maximum extent
possible.
(viii)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.
(ix) 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.
(x)
The Police shall immediately inform the State Government with reports on the events, including
damage, if any caused.
(xi) 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 reports in the High Court or Supreme Court as the
case may be for the Court in question to take suo motu action.
2.
Though ‘Police’ and ‘Public Order’ are State subjects under the Seventh Schedule (List-II) to the
Constitution of India, the Union Government attaches highest importance to prevention of crime.
Therefore has been advising the State Governments/Union Territory Administration from time to time
to give more focused attention to the administration of the criminal justice system with emphasis on
prevention and control of crime.
3.
In view of the Hon’ble Supreme
Courts directions, all the State Movements/UTs are advised to take
appropriate steps for effective prevention, detection, registration, investigation and prosecution of all
crimes within their jurisdiction.
Copy to:
Yours faithfully.
The Pri. Secretary/Secretary (Home) of all State Govts./UTs.
(Rakesh Singh) Joint Secretary to the Govt. of
India
The Director General of Police of all State Govt./UTs”
            Tele No.23092736
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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,
3   “ANNEXURE-3
No.24013/12/C.C./2013-CSR.III/3997-4105 Ministry of Home Affairs
(CS Division)
Major Dhyan Chand National Stadium, India Gate, New Delhi, dated the 26th March, 2018.
To,
Chief Secretaries of all State Governments & UT Administrations.
Subject:- Supreme Court’s Judgment in Writ Petition (Civil) No.55 of 2013 filed by Koshy
Jacob Vs. Union of India & Ors.
Sir,
       The Hon’ble Supreme Court in its Judgment dated 28-11-2017 in the above mentioned
writ petition, on the issue of dealing with cases of damage to public property has observed
that one or more district/additional district judges can be appointed by the State Government
in consultation with the High Court to deal with such issues either on whole-time basis or
on part-time basis, as the situation may require. In such cases, cadre strength of the judicial
officers may require suitable temporary or permanent increase.
2.   It is therefore requested that States/UTs may comply with the directions of the
Supreme Court’s order.
Yours faithfully,
(Krishan Kumar)
Deputy Secretary (CS-I)
Tel:23075291
End.- As above
Copy to;-
1.  Home Secretaries of all State Governments & UT Administrations
2.  DGPs of all State Governments & UT Administrations.”
KODUNGALLUR FILM SOCIETY & ANR. v. U.O.I. & ORS.
[A. M. KHANWILKAR, J.]
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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
4   Judgment dated 17th July, 2018 in Writ Petition (Civil) No. 754 of 2016;  AIR 2018
SC 3354
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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, 2015.

(2) It shall come into force on such date as 
the 
Central 
Government 
may, 
by 
notification in the Official Gazette, appoint.

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.

KODUNGALLUR FILM SOCIETY & ANR. v. U.O.I. & ORS.
[A. M. KHANWILKAR, J.]

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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.
1. 
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.
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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
Insertion of new 
sections 6A and 
6B 
1.
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.” ”

KODUNGALLUR FILM SOCIETY & ANR. v. U.O.I. & ORS.
[A. M. KHANWILKAR, J.]
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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
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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
KODUNGALLUR FILM SOCIETY & ANR. v. U.O.I. & ORS.
[A. M. KHANWILKAR, J.]
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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
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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:-
KODUNGALLUR FILM SOCIETY & ANR. v. U.O.I. & ORS.
[A. M. KHANWILKAR, J.]
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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 the Officer In-charge of
the Police Stations of the identified areas are extra cautious if
any instance of mob violence within their jurisdiction comes to
their notice.
(iv) The Nodal Officer, so designated, shall hold regular meetings
(at least once a month) with the local intelligence units in the
district
along with all Station House Officers of the district so as
to identify the existence of the tendencies of vigilantism, mob
violence or lynching in the district and take steps to prohibit
instances of dissemination of offensive material through different
social media platforms or any other means for inciting such
tendencies. The Nodal Officer shall also make efforts to eradicate
hostile environment against any community or caste which is
targeted in such incidents.
(v) The Director General of Police/the Secretary, Home
Department of the concerned States shall take regular review
meetings (at least once a quarter) with all the Nodal Officers
and State Police Intelligence heads. The Nodal Officers shall
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bring to the notice of the DGP any inter-district co-ordination
issues for devising a strategy to tackle lynching and mob violence
related issues at the State level.
(vi) It shall be the duty of every police officer to cause a mob to
disperse, by exercising his power under Section 129 of CrPC,
which, in his opinion, has a tendency to cause violence or wreak
the havoc of lynching in the disguise of vigilantism or otherwise.
(vii) The Home Department of the Government of India must
take initiative and work in co-ordination with the State
Governments for sensitising the law enforcement agencies and
by involving all the stake holders to identify the measures for
prevention of mob violence and lynching against any caste or
community and to implement the constitutional goal of social justice
and the Rule of Law.
(viii) The Director General of Police shall issue a circular to the
Superintendents of Police with regard to police patrolling in the
sensitive areas keeping in view the incidents of the past and the
intelligence obtained by the office of the Director General. It
singularly means that there should be seriousness in patrolling so
that the anti-social elements involved in such crimes are
discouraged and remain within the boundaries of law thus fearing
to even think of taking the law into their own hands.
(ix) The Central and the State Governments should broadcast
on radio and television and other media platforms including the
official websites of the Home
Department and Police of the
States that lynching and mob violence of any kind shall invite
serious consequence under the law.
(x) It shall be the duty of the Central Government as well as the
State Governments to take steps to curb and stop dissemination
of irresponsible and explosive messages, videos and other
material on various social media platforms which have a tendency
to incite mob violence and lynching of any kind.
(xi) The police shall cause to register FIR under Section 153A of
IPC and/or other relevant provisions of law against persons who
disseminate irresponsible and explosive messages and videos
having content which is likely to incite mob violence and lynching
of any kind.
KODUNGALLUR FILM SOCIETY & ANR. v. U.O.I. & ORS.
[A. M. KHANWILKAR, J.]
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(xii) The Central Government shall also issue appropriate
directions/advisories to the State Governments which would
reflect the gravity and seriousness of the situation and the
measures to be taken.
B. Remedial Measures
(i) Despite the preventive measures taken by the State Police, if
it comes to the notice of the local police that an incident of
lynching or mob violence has taken place, the jurisdictional police
station shall immediately cause to lodge an FIR, without any
undue delay, under the relevant provisions of IPC and/or other
provisions of law.
(ii) It shall be the duty of the Station House Officer, in whose
police station such FIR is registered, to forthwith intimate the
Nodal Officer in the district who shall, in turn, ensure that there
is no further harassment of the family members of the victim(s).
(iii) Investigation in such offences shall be personally monitored
by the Nodal Officer who shall be duty bound to ensure that the
investigation is carried out effectively and the charge-sheet in
such cases is filed within the statutory period from the date of
registration of the FIR or arrest of the accused, as the case may
be.
(iv) The State Governments shall prepare a lynching/mob violence
victim compensation scheme in the light of the provisions of
Section 357A of CrPC within one month from the date of this
judgment. In the said scheme for computation of compensation,
the State Governments shall give due
regard to the nature of
bodily injury, psychological injury and loss of earnings including
loss of opportunities of employment and education and expenses
incurred on account of legal and medical expenses. The said
compensation scheme must also have a provision for interim
relief to be paid to the victim(s) or to the next of kin of the
deceased within a period of thirty days of the incident of mob
violence/lynching.
(v) The cases of lynching and mob violence shall be specifically
tried by designated court/Fast Track Courts earmarked for that
purpose in each district. Such courts shall hold trial of the case
on a day to day basis. The trial shall preferably be concluded
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within six months from the date of taking cognizance. We may
hasten to add that this direction shall apply to even pending cases.
The District Judge shall assign those cases as far as possible to
one jurisdictional court so as to ensure expeditious disposal
thereof. It shall be the duty of the State Governments and the
Nodal Officers in particular to see that the prosecuting agency
strictly carries out its role in appropriate furtherance of the trial.
(vi) To set a stern example in cases of mob violence and lynching,
upon conviction of the accused person(s), the trial court must
ordinarily award maximum sentence as provided for various
offences under the provisions of the IPC.
(vii) The courts trying the cases of mob violence and lynching
may, on application by a witness or by the public prosecutor in
relation to such witness or on its own motion, take such measures,
as it deems fit, for protection and for concealing the identity and
address of the witness.
(viii) The victim(s) or the next of kin of the deceased in cases of
mob violence and lynching shall be given timely notice of any
court proceedings and he/she shall be entitled to be heard at the
trial in respect of applications such as bail, discharge, release
and parole filed by the accused persons. They shall also have
the right to file written submissions on conviction, acquittal or
sentencing.
(ix) The victim(s) or the next of kin of the deceased in cases of
mob violence and lynching shall receive
free legal aid if he or
she so chooses and engage any advocate of his/her choice from
amongst those enrolled in the legal aid panel under the Legal
Services Authorities Act, 1987.
C. Punitive Measures
(i) Wherever it is found that a police officer or an officer of the
district administration has failed to comply with the aforesaid
directions in order to prevent and/or investigate and/or facilitate
expeditious trial of any crime of mob violence and lynching, the
same shall be considered as an act of deliberate negligence and/
or misconduct for which appropriate action must be taken against
him/her and not limited to departmental action under the service
rules. The departmental action shall be taken to its logical
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[A. M. KHANWILKAR, J.]
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conclusion preferably within six months by the authority of the
first instance.
(ii) In terms of the ruling of this Court in Arumugam Servai v.
State of Tamil Nadu 21 , the States are directed to take disciplinary
action against the concerned officials if it is found that (i) such
official(s) did not prevent the incident, despite having prior
knowledge of it, or (ii) where the incident has already occurred,
such official(s) did not promptly apprehend and institute criminal
proceedings against the culprits.
41. The measures that are directed to be taken have to be carried
out within four weeks by the Central and the State Governments.
Reports of compliance be filed within the said period before the
Registry of this Court.”
These recommendations comprehensively set out the manner in which
the State and law-enforcement agencies are expected to deal with the
menace of mob violence specifically lynching and vigilantism and further,
assign responsibility and accountability to officials to curb such incidents
as also punitive measures to deter law enforcement agencies from shirking
their duties.
13. Our attention was also invited to the decision in Koshy Jacob
Vs. Union of India and Ors.,5  wherein an identical direction was sought
for implementation of guidelines issued by this Court In Re: Destruction
of Public and Private Properties (supra). The two-Judge Bench, after
adverting to the stand taken by the Union of India in
its reply affidavit
and the statement made by the Attorney General for India, disposed of
the said writ petition in the following terms:
“10. In view of the stand in the counter affidavit and the statement
of learned Attorney General, we do hope that the law now
proposed by the Union of India is brought into force within a
reasonable time to address all concerned issues. Learned Attorney
General has very fairly stated that the law may provide for speedy
mechanism for criminal liability, action for administrative failures
as well as remedies to the victims. A suggestion has been made
that one or more district/additional district judges can be appointed
by the State Government in consultation with the High Court to
deal with such issue either on whole-time basis or on part-time
5 (2018) 11 SCC 756
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basis, as the situation may require. In such cases cadre strength
of the judicial officers may require suitable temporary or
permanent increase. This suggestion can be considered in the
course of making the proposed law.
11. As far as the individual claim of the petitioner is concerned,
the organizers of the agitation are not before this Court. The
petitioner is at liberty to take his remedy at appropriate forum in
accordance with law.
The writ petition is accordingly disposed of.”
14. In Tehseen Poonawalla (supra), the Court adverted to the
decision in Shakti Vahini Vs. Union of India and Ors.,6 wherein the
Court was called upon to address the issue of honour killing and other
forms of honour crimes inflicted on young couples/families by Khap
Panahcayats. In paragraph 55, the Court issued directions to the States
to take measures to evolve a robust mechanism to meet the challenges
of the agonizing effect of honour crimes by Khap Panchayats. Paragraph
55 reads thus:
“55. Mr Raju Ramachandran, learned Senior Counsel being
assisted by Mr Gaurav Agarwal, has filed certain suggestions
for issuing guidelines. The Union of India has also given certain
suggestions to be taken into account till the legislation is made.
To meet the challenges of the agonising effect of honour crime,
we think that there has to be preventive, remedial and punitive
measures and, accordingly, we state the broad contours and the
modalities with liberty to the executive and the police
administration of the States concerned to add further measures
to evolve a robust mechanism for the stated purposes:
55.1. Preventive steps
55.1.1. The State Governments should forthwith identify districts,
sub-divisions and/or villages where instances of honour killing or
assembly of khap panchayats have been reported in the recent
past, e.g., in the last five years.
55.1.2. The Secretary, Home Department of the States
concerned shall issue directives/advisories to the Superintendent
of Police of the districts concerned for ensuring that the officer
6  (2018) 7 SCC 192
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in charge of the police stations of the identified areas are extra
cautious if any instance of inter-caste or inter-religious marriage
within their jurisdiction comes to their notice.
55.1.3. If information about any proposed gathering of a khap
panchayat comes to the knowledge of any police officer or any
officer of the District Administration, he shall forthwith inform
his immediate superior officer and also simultaneously intimate
the jurisdictional Deputy Superintendent of Police and
Superintendent of Police.
55.1.4. On receiving such information, the Deputy Superintendent
of Police (or such senior police officer as identified by the State
Governments with respect to the area/district) shall immediately
interact with the members of the khap panchayat and impress
upon them that convening of such meeting/gathering is not
permissible in law and to eschew from going ahead with such a
meeting. Additionally, he should issue appropriate directions to
the officer in charge of the jurisdictional police station to be vigilant
and, if necessary, to deploy adequate police force for prevention
of assembly of the proposed gathering.
55.1.5. Despite taking such measures, if the meeting is
conducted, the Deputy Superintendent of Police shall personally
remain present during the meeting and impress upon the assembly
that no decision can be taken to cause any harm to the couple or
the family members of the couple, failing which
each one
participating in the meeting besides the organisers would be
personally liable for criminal prosecution. He shall also ensure
that video recording of the discussion and participation of the
members of the assembly is done on the basis of which the law-
enforcing machinery can resort to suitable action.
55.1.6. If the Deputy Superintendent of Police, after interaction
with the members of the khap panchayat, has reason to believe
that the gathering cannot be prevented and/or is likely to cause
harm to the couple or members of their family, he shall forthwith
submit a proposal to the District Magistrate/Sub-Divisional
Magistrate of the District/Competent Authority of the area
concerned for issuing orders to take preventive steps under CrPC,
including by invoking prohibitory orders under Section 144 CrPC
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and also by causing arrest of the participants in the assembly
under Section 151 CrPC.
55.1.7. The Home Department of the Government of India must
take initiative and work in coordination with the State
Governments for sensitising the law enforcement agencies and
by involving all the stake holders to identify the measures for
prevention of such violence and to implement the constitutional
goal of social justice and the rule of law.
55.1.8. There should be an institutional machinery with the
necessary coordination of all the stakeholders. The different State
Governments and the Centre ought to work on sensitisation of
the law enforcement agencies to mandate social initiatives and
awareness to curb such violence.”
55.2. Remedial measures
55.2.1. Despite the preventive measures taken by the State Police,
if it comes to the notice of the local police that the khap panchayat
has taken place and it has passed any diktat to take action against
a couple/family of an inter-caste or inter-religious marriage (or
any other marriage which does not meet their acceptance), the
jurisdictional police official shall cause to immediately lodge an
FIR under the appropriate provisions of the Penal Code including
Sections 141, 143, 503 read with Section 506 IPC.
55.2.2. Upon registration of FIR, intimation shall be simultaneously
given to the Superintendent of Police/Deputy Superintendent of
Police who, in turn, shall ensure that effective investigation of
the crime is done
and taken to its logical end with promptitude.
55.2.3. Additionally, immediate steps should be taken to provide
security to the couple/family and, if necessary, to remove them
to a safe house within the same district or elsewhere keeping in
mind their safety and threat perception. The State Government
may consider of establishing a safe house at each District
Headquarter for that purpose. Such safe houses can cater to
accommodate:
(i) young bachelor-bachelorette couples whose relationship is
being opposed by their families/local community/khaps, and
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(ii) young married couples (of an inter-caste or inter-religious or
any other marriage being opposed by their families/local
community/khaps).
Such safe houses may be placed under the supervision of the
jurisdictional District Magistrate and Superintendent of Police.
55.2.4. The District Magistrate/Superintendent of Police must
deal with the complaint regarding threat administered to such
couple/family with utmost sensitivity. It should be first ascertained
whether the bachelor-bachelorette are capable adults. Thereafter,
if necessary, they may be provided logistical support for
solemnising their marriage and/or for being duly registered under
police protection, if they so desire. After the marriage, if the
couple so desire, they can be provided accommodation on
payment of nominal charges in the safe house initially for a period
of one month to be extended on monthly basis but not exceeding
one year in aggregate, depending on their threat assessment on
case-to-case basis.
55.2.5. The initial inquiry regarding the complaint received from
the couple (bachelor-bachelorette or a young married couple) or
upon receiving information from an independent source that the
relationship/marriage of such couple is opposed by their family
members/local community/khaps shall be entrusted by the District
Magistrate/Superintendent of Police to an officer of the rank of
Additional Superintendent of Police. He shall conduct a
preliminary inquiry and ascertain the authenticity, nature and
gravity of threat perception. On being satisfied as to the
authenticity of such threats, he shall immediately submit a report
to the Superintendent of Police in not later than one week.
55.2.6. The District Superintendent of Police, upon receipt of
such report, shall direct the Deputy Superintendent of Police in
charge of the sub-division concerned to cause to register an FIR
against the persons threatening the couple(s) and, if necessary,
invoke Section 151 CrPC Additionally, the Deputy Superintendent
of Police shall personally supervise the progress of investigation
and ensure that the same is completed and taken to its logical
end with promptitude. In the course of investigation, the persons
concerned shall be booked without any exception including the
members who have participated in the assembly. If the
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involvement of the members of khap panchayat comes to the
fore, they shall also be charged for the offence of conspiracy or
abetment, as the case may be.
55.3. Punitive measures
55.3.1. Any failure by either the police or district officer/officials
to comply with the aforesaid directions shall be considered as an
act of deliberate negligence and/or misconduct for which
departmental action must be taken under the service rules. The
departmental action shall be initiated and taken to its logical end,
preferably not exceeding six months, by the authority of the first
instance.
55.3.2. In terms of the ruling of this Court in Arumugam Servai7,
the States are directed to take disciplinary action against the
officials concerned if it is found that:
(i) such official(s) did not prevent the incident, despite having
prior knowledge of it, or
(ii) where the incident had already occurred, such official(s) did
not promptly apprehend and institute criminal proceedings against
the culprits.
55.3.3. The State Governments shall create Special Cells in every
district comprising of the Superintendent of Police, the District
Social Welfare Officer and District Adi-Dravidar Welfare Officer
to receive petitions/complaints of harassment of and threat to
couples of inter-caste marriage.
55.3.4. These Special Cells shall create a 24-hour helpline to
receive and register such complaints and to provide necessary
assistance/advice and protection to the couple.
55.3.5. The criminal
cases pertaining to honour killing or violence
to the couple(s) shall be tried before the designated court/fast
track court earmarked for that purpose. The trial must proceed
on day-to-day basis to be concluded preferably within six months
from the date of taking cognizance of the offence. We may hasten
to add that this direction shall apply even to pending cases. The
District Judge concerned shall assign those cases, as far as
possible, to one jurisdictional court so as to ensure expeditious
disposal thereof.”
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15. We are conscious of the fact that the crimes committed by
groups of self-appointed keepers of public morality may be on account
of different reasons or causes, but the underlying purpose of such group
of persons is to exercise unlawful power of authority and that too, without
sanction of State and create fear in the minds of the public or, in a given
situation, section of the community. The dispensation for preventing
occurrences of such crimes or remedial measures and punitive measures
would vest in the same police in the State. Therefore, a comprehensive
structure will have to be evolved in the respective States so that the
issues of accountability and efficiency in curbing incidents of peaceful
protests turning into mob violence, causing damage to property including
investigation, remedial and punitive measures, are duly addressed. While
doing so, the directions given by this Court in In Re: Destruction of
Public and Private Properties (supra), Shakti Vahini (supra) and
Tehseen Poonawalla (supra), must be borne in mind.
16. There are overlapping areas of directions which albeit apply
to the situations referred to in the concerned decision. For the purpose
of the present writ petition, we have no hesitation in observing that the
dispensation can be similar to the one decided recently in Tehseen
Poonawalla (supra), for which reason the guidelines delineated in the
said decision must apply proprio vigore in
respect of peaceful protests
turning into mob violence, causing damage to public and private properties.
A.
Ex abundanti cautela, we may hasten to clarify that similar
interim measures will operate in respect of any peaceful protest turning
into mob violence, causing loss of life or damage to public and private
properties, including violence designed to instill fear in the minds and
terrorise the common man, in the absence of any law to that effect. The
recommendations / directions elucidated hereunder are not exhaustive
but only to set out broad contour of the measures required to be taken
and are in addition to the recommendations/directions given in In Re:
Destruction of Public and Private Properties (supra):
A.
Structural and preventive measures
a) In addition to the responsibilities ascribed to the Nodal Officer(s) as
set out in Tehseen Poonawalla (supra), the said Nodal Officer(s) would
also be responsible for creating and maintaining a list containing the
various cultural establishments, including theatres, cinema halls, music
venues, performance halls and centres and art galleries within the district,
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and pin point vulnerable cultural establishments and property which have
been attacked/damaged by mob violence over the past 5 (five) years.
This list would be updated on a regular basis to account for any new
openings/closings of establishments.
b) In addition to the prohibition against weaponry laid down in paragraph
12 (II) of In Re: Destruction of Public and Private Properties (supra),
any person found to be carrying prohibited weaponry, licensed or
otherwise, during protests/demonstrations would prima facie be presumed
to have an intention to commit violence and be proceeded in that regard
as per law.
c) The State governments should set up Rapid Response Teams
preferably district-wise which are specially trained to deal with and can
be quickly mobilized to respond to acts of mob violence. These teams
can also be stationed around vulnerable cultural establishments as
mentioned hereinabove.
d) The State governments should set up special helplines to deal with
instances of mob violence.
e) The State police shall create and maintain a cyber-information portal
on its website and on its internet-based application(s) for reporting
instances of mob violence and destruction of public and private properties.
B. Remedies to minimize, if not extirpate, the impending mob
violence
a) The Nodal Officer(s) will coordinate with local emergency services,
including police stations, fire brigades, hospital and medical services and
disaster management authorities during
incidents of mob violence in order
to have a comprehensive and consolidated response to the situation.
b) The authorities must consider the use of non-lethal crowd-control
devices, like water cannons and tear gas, which cause minimum injury
to people but at the same time, act as an effective deterrent against mob
force.
c) The authorities must ensure that arrests of miscreants found on the
spot are done in the right earnest.
d) The Nodal Officer(s), may consider taking appropriate steps as per
law including to impose reasonable restrictions on the social media and
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internet-based communication services or mobile applications, by invoking
enabling provisions of law during the relevant period of mob violence, if
the situation so warrants.
e) The Nodal Officer(s) must take coordinated efforts and issue messages
across various audio-visual mediums to restore peace and to stop/control
rumours. This can extend to issuing communications on local TV channels,
radio stations, social media like Twitter etc.
C.
Liability of person causing violence
a) If a call to violence results in damage to property, either directly or
indirectly, and has been made through a spokesperson or through social
media accounts of any group/organization(s) or by any individual,
appropriate action should be taken against such person(s) including under
Sections 153A, 295A read with 298 and 425 of the Indian Penal Code,
1860.
b) In instances where a group/organisation has staged a protest or
demonstration resulting in violence and damage to property, the leaders
and office bearers of such group/organisation should physically present
themselves for questioning, on their own, within 24 (twenty four) hours,
in the police station within whose jurisdiction the violence and damage
occurred. Any such person(s) failing to present himself/herself in such
manner without any sufficient reason should be proceeded against as a
suspect and legal process must be initiated forthwith against him/her
including for being declared an
absconder in accordance with law.
c) A person arrested for either committing or initiating, promoting,
instigating or in any way causing to occur any act of violence which
results in loss of life or damage to property may be granted conditional
bail upon depositing the quantified loss caused due to such violence or
furnishing security for such quantified loss. In case of more than one
person involved in such act of violence, each one of them shall be jointly,
severally and vicariously liable to pay the quantified loss. If the loss is
yet to be quantified by the appropriate authority, the judge hearing the
bail application may quantify the amount of tentative damages (which
shall be subject to final determination thereof by the appropriate authority)
on the principle stated in paragraph 15 of the decision in In Re:
Destruction of Public and Private Properties (supra), after hearing
the submissions of the State/agency prosecuting the matter in that regard.
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D. Responsibility of police officials
a) When any act of violence results in damage to property, concerned
police officials should file FIRs and complete investigation as far as
possible within the statutory period and submit a report in that regard.
Any failure to file FIRs and conduct investigations within the statutory
period without sufficient cause should be considered as dereliction of
duty on behalf of the concerned officer and can be proceeded against
by way of departmental action in right earnest.
b) Since the Nodal Officer(s) holds the overall responsibility in each
district to prevent mob violence against cultural establishments and against
property, any unexplained and/or unsubstantiated delay in filing FIRs
and/or conducting investigations in that regard should also be deemed to
be inaction on the part of the said Nodal Officer(s).
c) With reference to the videography mentioned in paragraphs 5(iv), 10
and 12 of In Re: Destruction of Public and Private Properties (supra),
the officer-in-charge should first call upon from the panel of local video
operators maintained by the concerned police station to video-record
the events. If the said video operators are unable to record the events
for whatever reason or if the officer-in-charge is of the opinion that
supplementary information is required, then he/she can also call upon
private video operators to record the events and request the media for
information on the incident in question, if need be.
d) Status reports of the investigation(s)/trial(s) concerning such offences
as set out hereinabove, including the results of such trial(s), shall be
uploaded on the official website of the concerned State police on a regular
basis.
e) In the event of acquittal of any person(s) accused of committing such
offences as set out hereinabove, the Nodal Officer(s) must coordinate
with the Public Prosecutor for filing appeal against such acquittal, in the
right earnest.
E.
Compensation
a) The person/persons who has/have initiated, promoted, instigated or
any way caused to occur any act of violence against cultural programmes
or which results in loss of life or damage to public or private property
either directly or indirectly, shall be made liable to compensate the victims
of such violence.
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b) Claims arising out of such acts of violence should be dealt with in the
manner prescribed in paragraph 15 of In Re: Destruction of Public
and Private Properties (supra).
c) This compensation should be with regard to the loss of life or damage
done to any public or private properties, both movable and immovable.
18. The recommendations that we have made hereinabove be
implemented by the Central and State governments as expeditiously as
possible, preferably within a period of 8 (eight) weeks from today.
19.  While parting, we place on record our sincere appreciation
for the able assistance and constructive suggestions given by the learned
Attorney General for India, the Additional Solicitor General, counsel for
the petitioners and other counsel appearing in this case.
20. We accordingly dispose of the writ petition in the
aforementioned terms.
Nidhi Jain                                                                                       Petition disposed of.