KODUNGALLUR FILM SOCIETY & ANR. versus UNION OF INDIA & ORS. on 1 October 2018

[2018] 12 S.C.R. 695

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 ANDDR. 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 indamage to public and private properties arising out of such violence– Submission that law and order problems arose out of the releaseof several films, especially film Padmaavat – PIL seeking issuanceof directions to the respondents to strictly follow and implement theguidelines formulated by this Court in In Re: Destruction of Publicand Private Properties case to prevent destruction of public andprivate properties in mass protests and demonstrations – Held: Theseacts of violence highlight a deeper malaise, one of intolerancetowards others‘ views which then results in attempts to suppressalternate view points, artistic integrity and the freedom of speechand expression guaranteed by the Constitution – Nobody has theright to become a self-appointed guardian of the law and forciblyadminister his or her own interpretation of the law on others,especially not with violent means – Dispensation for preventingoccurrences of such crimes or remedial measures and punitivemeasures would vest in the same police in the State – Therefore,comprehensive structure to be evolved in the respective States sothat the issues of accountability and efficiency in curbing incidentsof peaceful protests turning into mob violence, causing damage toproperty including investigation, remedial and punitive measures,are duly addressed – Dispensation can be similar to TehseenPoonawalla case – Recommendations in addition to In Re Destructionof Public and Private Properties case, issued under the followingheads: structural and preventive measures, remedies to minimizethe impending mob violence, liability of person causing violence,responsibility of police officials and compensation – Central and

A

B

C

D

E

F

G

H

[2018] 12 S.C.R.

AState governments to implement the recommendations within thestipulated period.

Disposing of the writ petition, the Court HELD: 1.1 There is a disconcerting rise in the protestsand demonstrations by private entities targeting, amongst others,Bexhibition of films and social functions and including sections ofpeople, on moral grounds, in particular, using threats and actualviolence. In addition to being patently illegal and unlawful, suchacts of violence highlight a deeper malaise, one of intolerancetowards others‘ views which then results in attempts to suppressCalternate view points, artistic integrity and the freedom of speechand expression guaranteed by the Constitution of India. Indeed,the people who perpetrate such actions, especially against privateparties, do so without fear of consequence and reprisal, probablybelieving that private parties do not have the wherewithal to holdthem accountable for such actions. In such situations, the StateDmust step in and perform its duty by taking measures to preventsuch actions from occurring in the first place, ensuring that law-enforcement agencies exercise their power to bring the guiltyparties to book and imposing time-bound and adequatepunishment for any lapses. This Court has time and time againEunderscored the supremacy of law and that one must not forgetthat administration of law can only be done by law-enforcingagencies recognised by law. Nobody has the right to become aself-appointed guardian of the law and forcibly administer his orher own interpretation of the law on others, especially not withviolent means. Mob violence runs against the very core of ourFestablished legal principles since it signals chaos and lawlessnessand the State has a duty to protect its citizens against the illegaland reprehensible acts of such groups. [Para 7] [723-C-D; 724-A-D]

1.2 There is a broad consensus that the recommendationsGmade and directions given in In Re: Destruction of Public andPrivate Properties case, at paragraph 3 are comprehensive to dealwith the issue of large-scale destruction of private and publicproperties which unwinds during violent protests anddemonstrations. The Committee‘s recommendations noted in theHsaid judgment traverse the length and breadth of the issue at hand and, if implemented in their entirety, would go a long way inremoving the bane of violence caused against persons andproperty. As far as implementation of the said recommendations,is concerned, and the Attorney General‘s submission is that theUnion is mindful of the dictum in In Re: Destruction of Publicand Private Properties case, and has advised the States to followthe same in its letter and spirit and also drafted a bill for initiatinglegislative changes in conformity with the recommendations ofthis Court, namely, The Prevention of Damage to Public Property(Amendment) Bill, 2015, which is currently being examined inconsultation 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 crimescommitted by groups of self-appointed keepers of public moralitymay be on account of different reasons or causes, but theunderlying purpose of such group of persons is to exerciseunlawful power of authority and that too, without sanction of Stateand create fear in the minds of the public or, in a given situation,section of the community. The dispensation for preventingoccurrences of such crimes or remedial measures and punitivemeasures would vest in the same police in the State. Therefore,a comprehensive structure will have to be evolved in therespective States so that the issues of accountability and efficiencyin curbing incidents of peaceful protests turning into mob violence,causing damage to property including investigation, remedial andpunitive measures, are duly addressed. While doing so, thedirections given by this Court in In Re: Destruction of Public andPrivate 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 albeitapply to the situations referred to in the concerned decision. Forthe purpose of the instant writ petition, it is observed that thedispensation can be similar to the one decided recently in TehseenPoonawalla case, for which reason the guidelines delineated inthe said decision must apply proprio vigore in respect of peacefulprotests turning into mob violence, causing damage to public andprivate properties. Ex abundanti cautela, it is clarified that similarinterim measures would operate in respect of any peaceful protest AB

C

D

E

F

G

H

Aturning into mob violence, causing loss of life or damage to publicand private properties, including violence designed to instill fearin the minds and terrorise the common man, in the absence ofany law to that effect. [Para 16] [742-D-F]

1.5 The recommendations/directions elucidated hereunderBare not exhaustive but only to set out broad contour of themeasures required to be taken and are in addition to therecommendations/directions given in In Re: Destruction of Publicand Private Properties case.

A. Structural and preventive measures

Ca) In addition to the responsibilities ascribed to the NodalOfficer(s) as set out in TehseenPoonawalla case, the saidNodal Officer(s) would also be responsible for creatingand maintaining a list containing the various culturalestablishments, including theatres, cinema halls, musicvenues, performance halls and centres and art galleriesDwithin the district, and pin point vulnerable culturalestablishments 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 accountfor any new openings/closings of establishments.

E

E

b) In addition to the prohibition against weaponry laid downin paragraph 12 (II) of In Re: Destruction of Public andPrivate Properties case, any person found to be carryingprohibited weaponry, licensed or otherwise, duringprotests/demonstrations would prima facie be presumedFto have an intention to commit violence and be proceededin that regard as per law.

c) The State governments should set up Rapid ResponseTeams preferably district-wise which are specially trainedto deal with and can be quickly mobilized to respond toacts of mob violence. These teams can also be stationedGaround vulnerable cultural establishments.

d) The State governments should set up special helplinesto 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 H

application(s) for reporting instances of mob violence anddestruction of public and private properties. [Para 16][742-F-H; 743-A-D]

B. Remedies to minimize, if not extirpate, the impendingmob violence

a) The Nodal Officer(s) will coordinate with localemergency services, including police stations, firebrigades, hospital and medical services and disastermanagement authorities during incidents of mob violencein order to have a comprehensive and consolidatedresponse to the situation.

b) The authorities must consider the use of non-lethalcrowd-control devices, like water cannons and tear gas,which cause minimum injury to people but at the sametime, act as an effective deterrent against mob force.

c) The authorities must ensure that arrests of miscreantsfound on the spot are done in the right earnest.

d) The Nodal Officer(s), may consider taking appropriatesteps as per law including to impose reasonablerestrictions on the social media and internet-basedcommunication services or mobile applications, byinvoking enabling provisions of law during the relevantperiod of mob violence, if the situation so warrants.

e) The Nodal Officer(s) must take coordinated efforts andissue messages across various audio-visual mediums torestore peace and to stop/control rumours. This canextend 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, eitherdirectly or indirectly, and has been made through aspokesperson or through social media accounts of anygroup/organization(s) or by any individual, appropriateaction should be taken against such person(s) includingunder Sections 153A, 295A read with 298 and 425 of thePenal Code, 1860.

A

B

C

D

EF

G

H

A

B

C

D

E

F

G

H

b) In instances where a group/organisation has staged aprotest or demonstration resulting in violence and damageto property, the leaders and office bearers of such group/organisation should physically present themselves forquestioning, on their own, within 24 (twenty four) hours,in the police station within whose jurisdiction the violenceand damage occurred. Any such person(s) failing to presenthimself/herself in such manner without any sufficient reasonshould be proceeded against as a suspect and legal processmust be initiated forthwith against him/her including forbeing 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 anyact of violence which results in loss of life or damage toproperty may be granted conditional bail upon depositingthe quantified loss caused due to such violence orfurnishing security for such quantified loss. In case of morethan one person involved in such act of violence, eachone of them shall be jointly, severally and vicariously liableto pay the quantified loss. If the loss is yet to be quantifiedby the appropriate authority, the judge hearing the bailapplication may quantify the amount of tentative damages(which shall be subject to final determination thereof bythe appropriate authority) on the principle stated inparagraph 15 of the decision in In Re: Destruction of Publicand Private Properties case, after hearing the submissionsof 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 completeinvestigation as far as possible within the statutory periodand submit a report in that regard. Any failure to file FIRsand conduct investigations within the statutory periodwithout sufficient cause should be considered as derelictionof duty on behalf of the concerned officer and can beproceeded against by way of departmental action in rightearnest.

b) Since the Nodal Officer(s) holds the overallresponsibility in each district to prevent mob violenceagainst cultural establishments and against property, anyunexplained and/or unsubstantiated delay in filing FIRsand/or conducting investigations in that regard should alsobe deemed to be inaction on the part of the said NodalOfficer(s).

(c) With reference to the videography mentioned inparagraphs 5(iv), 10 and 12 of In Re: Destruction of Publicand Private Properties case, the officer-in-charge shouldfirst call upon from the panel of local video operatorsmaintained by the concerned police station to video-recordthe events. If the said video operators are unable to recordthe events for whatever reason or if the officer-in-chargeis of the opinion that supplementary information isrequired, then he/she can also call upon private videooperators to record the events and request the media forinformation on the incident in question, if need be. Statusreports of the investigation(s)/trial(s) concerning suchoffences, including the results of such trial(s), shall beuploaded on the official website of the concerned Statepolice on a regular basis. In the event of acquittal of anyperson(s) accused of committing such offences, the NodalOfficer(s) must coordinate with the Public Prosecutor forfiling 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 violenceagainst cultural programmes or which results in loss oflife or damage to public or private property either directlyor indirectly, shall be made liable to compensate the victimsof such violence.

b) Claims arising out of such acts of violence should bedealt with in the manner prescribed in In Re: Destructionof Public and Private Properties’s case.

AB

C

D

E

F

G

Ac) This compensation should be with regard to the loss oflife 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 theBCentral 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. UnionCof 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) 11SCC 756 – referred to.

Case Law Reference

ECIVIL ORIGINAL JURISDICTION : Writ Petition (Civil)No. 330 of 2018

Under Article 32 of the Constitution of India.

P. V. Dinesh, Adv. for the petitioners.

FK. K. Venugopal, AG, Aman Lekhi, ASG, Rohit Bhat, Ms. MadhaviDiwan, Ms. Charanya L. for B.V. Balaramdas, Advs. for therespondents.

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J. 1. The petitioners have filed theGpresent writ petition on 25[th] January, 2018, in the backdrop of mobviolence, protests and demonstrations which erupted across the nationin the recent past, especially against cultural programmes andestablishments and the ensuing damage to public and private propertiesarising out of such violence. Petitioner No. 1 is a registered film societyand petitioner no. 2, is a member of the petitioner no.1 film society.H

They have highlighted law and order problems arising out of the releaseof several films, especially the violence surrounding the release of thefilm ‘Padmaavat’, and submit that fundamentalist outfits and fringe groupshave been issuing threats and engaging in acts of violence against peopleand property to disrupt and prevent public exhibitions of these films onthe pretext that they offend their cultural/religious sentiments. Thesegroups engage in violence against artistic expression, with utter impunityand show complete disregard for the rule of law and constitutional values.The films which are protested against are certified for public exhibitionin accordance with law under the Cinematograph Act and by attemptingto stop their exhibition, these groups operate as ‘super censors’, exercisingunlawful authority and power outside the control and without the sanctionof the State. These attacks on films are part of a larger problem wherebyprivate individuals and groups impose unlawful restraints by threateningviolence upon citizens’ artistic freedoms and thereby impinge on thefreedom of speech and expression under Article 19(1)(a) of theConstitution of India. The petitioners contend that the respondent stategovernments then themselves ban the exhibition of such films, citing lawand order problems, without clamping down on the root cause of suchproblems namely the individuals and groups who incite and commitviolence. It is also contended that many such groups have tacit supportfrom the political parties in power.

2. The petitioners have consequently prayed for the followingreliefs:

“a) Issue a writ in the nature of mandamus, or any otherappropriate writ, direction or order directing the respondents tostrictly follow and implement the guidelines formulated by thisHon’ble Court in In Re: Destruction of Public and PrivateProperties v. Govt. of AP (2009) 5 SCC 212 with regard tomeasures to be taken to prevent destruction of public and privateproperties in mass protestes and demonstrations, and alsoregarding the modalities of fixing liability and recoveringcompensation for damages caused to public and private propertiesduring such demonstrations and protests, particularly mentionedin Paragraph 12 and 15 of SCC Report of the said judgment.

b) appoint Claims Commissioner in the manner stated inparagraph 15 of the judgment in In Re: Destruction of Publicand Private Properties v. Govt. of AP (2009) 5 SCC 212 to A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

assess damages caused to public and private properties byprotestors and also to fix liability not only on the perpetrators butalso on the leaders of the groups/outfits/organizations whichinstigated agitations with their threats against film makers andexhibitors and through their call for destroying multiplexes, malls,cinema-halls, theaters etc. in order to prevent the exhibition offilms;

c) Issue a writ or order or direction in the nature of Mandamusor any other appropriate Writ or order directing all the stategovernments to initiate forthwith action under the Indian PenalCode 1860 and the Prevention of Destruction to Public PropertyAct 1984 against persons who commit, cause to commit andincite violence and acts of destruction with the intention ofpreventing and disrupting the screening of films which are certifiedfor public exhibition under the Cinematograph Act, 1952 as it isviolative of Article 19 (1)(a) of the Constitution of India, in theinterest of justice; and ;

d) Issue a writ or order or direction in the nature of Mandamusor any other appropriate Writ or order directing the respondentsto recover the additional expenditure involved in providing securityto film exhibition centers from those people who have raisedthreats against exhibiting certified films, in the interest of justice;and

e) Issue a writ or order or direction in the nature of Mandamusor any other appropriate Writ or order directing the respondentsto complete the investigation and trial in such offences in a timebound manner, in the interest of justice; and

f) Issue a writ or order or direction in the nature of Mandamusor 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 theintention of preventing and disrupting the screening of filmscertified for public exhibition under the Cinematograph Act 1952will be allowed only on condition that they deposit the sumequivalent to the loss quantified to have been caused by them, orfurnish security for such quantified loss and also, in the interestof justice; and

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

h) Issue a writ in the nature of mandamus, or any otherappropriate writ, direction or order directing the respondents tofile status reports regarding the implementation of actions takenby them with respect to guidelines formulated by this Hon’bleCourt in strictly follow and implement the guidelines formulatedby this Hon’ble Court in In Re: Destruction of Public andPrivate Properties v. Govt. of AP (2009) 5 SCC, particularlymentioned in Paragraph 12 and 15 of SCC Report of the saidjudgment.

i) Issue a writ in the nature of mandamus, or any otherappropriate writ, direction or order directing the respondents toexplore the options of invoking the provisions of UnlawfulActivities (Prevention) Act 1967 against the outfits/groups/organizations which make brazen threats on film makers andartists, and indulge in systematic and organized acts of destructionand damage of property so as to achieve their unlawful ends bystriking terror in society;

j) Please to issue any other writ or direction(s) or Order(s) asthe Hon’ble Court may deem fit and proper in view of the factsand circumstances of the case and in the interest of justice.”

3. The principal relief is to issue directions to the States/Unionof India to strictly implement the decision rendered by this Court in InRe: Destruction of Public and Private Properties Vs. State of AndhraPradesh & Ors.[1] concerning the large-scale destruction of propertiesin the name of agitations, bandhs, hartals etc. The Court, after takingnote of certain suggestions given by the Committees appointed by theCourt inter alia recommended amendments to the Prevention of Damageto Public Property Act, 1984 (for short ‘thePDPP Act’), CriminalProcedure Code, 1973 and other criminal law statutes; and also set out AB

C

D

E

F

G

H

Aguidelines to assess damages to property in the absence of a statutoryframework. The relevant portion of the judgment is set out hereunder:

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

B

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

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

C

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

D(iii) The PDPP Act to contain a provision for rebuttablepresumption.

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

6. The recommendations of the Justice Thomas Committee havebeen made on the basis of the following conclusions after takinginto consideration the materials.

E

In respect of (i)

7. “According to this Committee the prosecution shouldbe required to prove, first that public property has beendamaged in a direct action called by an organization andthat the accused also participated in such direct action.From that stage the burden can be shifted to the accusedto prove his innocence. Hence we are of the view that insituations where prosecution succeeds in proving thatpublic property has been damaged in direct actions inwhich accused also participated, the court should be giventhe power to draw a presumption that the accused is guiltyof destroying public property and that it is open to theaccused to rebut such presumption. The PDPP Act maybe amended to contain provisions to that effect.”

F

G

H

In respect of (ii)

8. “Next we considered how far the leaders of the organizationscan also be caught and brought to trial, when public property isdamaged in the direct actions called at the behest of suchorganizations. Destruction of public property has become sorampant during such direct actions called by organizations. Inalmost all such cases the top leaders of such organisations whoreally instigate such direct actions will keep themselves in thebackground and only the ordinary or common members or grassroot level followers of the organisation would directly participatein such direct actions and they alone would be vulnerable toprosecution proceedings. In many such cases, the leaderswould really be the main offenders being the abettors ofthe crime. If they are not caught in the dragnet and allowedto be immune from prosecution proceedings, such directactions would continue unabated, if not further escalated, and will remain a constant or recurring affair.

and will remain a constant or recurring affair.

Of course, it is normally difficult to prove abetment of the offencewith the help of direct evidence. This flaw can be remediedto a great extent by making an additional provision inPDPP Act to the effect that specified categories of leadersof the organization which make the call for direct actionsresulting in damage to public property, shall be deemedto be guilty of abetment of the offence. At the same time, noinnocent person, in spite of his being a leader of the organizationshall be made to suffer for the actions done by others. Thisrequires the inclusion of a safeguard to protect such innocentleaders.”

In respect of (iii)

9. “After considering various aspects to this question wedecided to recommend that prosecutions should berequired to prove (i) that those accused were the leadersor office bearers of the organisation which called out thedirect actions and (ii) that public property has been damagedin or during or in the aftermath of such direct actions. Atthat stage of trial it should be open to the court to draw apresumption against such persons who are arraigned inthe case that they have abetted the commission of offence.

A

BCD

EF

GH

A

B

C

D

E

F

G

H

However, the accused in such case shall not be liable toconviction if he proves that (i) he was in no way connectedwith the action called by his political party or that (ii) hehas taken all reasonable measures to prevent causingdamage to public property in the direct action called byhis organisation.”

In respect of (iv)

10. “The Committee considered other means of adducingevidence for averting unmerited acquittals in trialsinvolving offences under PDPP Act. We felt that one of theareas to be tapped is evidence through videography in additionto contemporaneous material that may be available through themedia, such as electronic media. With the amendments broughtin the Evidence Act, through Act 21 of 2000 permitting evidencecollected 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 enforcingagency is of opinion that any direct action, either declared orundeclared has the potential of causing destruction or damage topublic property, he shall avail himself of the services of videooperators. For this purpose each police station shall beempowered to maintain a panel of local video operators whocould be made available at short notices.

(ii) The police officer who has the responsibility to act on theinformation that a direct action is imminent and if he has reasonto apprehend that such direct action has the potential of causingdestruction of public property, he shall immediately avail himselfof the services of the videographer to accompany him or anyother police officer deputed by him to the site or any other placewherefrom video shooting can conveniently be arrangedconcentrating on the person/ persons indulging in any acts ofviolence or other acts causing destruction or damage to anyproperty.

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

The Committee felt that offenders arrested for damaging publicproperty shall be subjected to a still more stringent provisionfor securing bail. The discretion of the court in granting bail tosuch persons should be restricted to cases where the court feelsthat there are reasonable grounds to presume that he is not guiltyof the offence. This is in tune with Section 437 of the Code ofCriminal Procedure, 1973 and certain other modern Criminal Lawstatutes. So we recommend that Section 5 may be amendedfor carrying out the above restriction.

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

However, we felt that apart from the penalty ofimprisonment the court should be empowered to imposea fine which is equivalent to the market value of theproperty damaged on the day of the incident. In default ofpayment of fine, the offender shall undergo imprisonmentfor a further period which shall be sufficient enough todeter him from opting in favour of the alternativeimprisonment.”

11. The recommendations according to us are wholesomeand need to be accepted.

12. To effectuate the modalities for preventive action andadding teeth to enquiry/investigation following guidelinesare to be observed:

As soon as there is a demonstration organized:

(I) The organizer shall meet the police to review and revisethe route to be taken and to lay down conditions for apeaceful march or protest; A

BC

D

EF

G

H

A(II)All weapons, including knives, lathis and the like shallbe prohibited;

(III) An undertaking is to be provided by the organizersto ensure a peaceful march with marshals at each relevantjunction; B

(IV) The police and State Government shall ensurevideograph of such protests to the maximum extentpossible;

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

(VI) In the event that demonstrations turn violent, theofficer-in-charge shall ensure that the events arevideographed through private operators and also requestDsuch further information from the media and others on theincidents in question.

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

E

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

F

13. So far as the Committee headed by Mr. F.S. Nariman isconcerned the recommendations and the views are essentiallyas follows:

“There is a connection between tort and crime - the purpose ofthe criminal law is to protect the public interest and punishGwrongdoers, the purpose of tort-law is to vindicate the rights ofthe individual and compensate the victim for loss, injury or damagesuffered by him: however - the distinction in purpose betweencriminal law and the law of tort is not entirely crystal-clear, andit has been developed from case-to-case. The availability ofHexemplary damages in certain torts (for instance) suggest an H

overtly punitive function - but one thing is clear: tort and criminallaw have always shared a deterrent function in relation towrongdoing.

The entire history of the development of the tort law shows acontinuous tendency, which is naturally not uniform in all commonlaw countries, to recognise as worthy of legal protection, interestswhich were previously not protected at all or were infrequentlyprotected and it is unlikely that this tendency has ceased or isgoing to cease in future. There are dicta both ancient and modernthat categories of tort are not closed and that novelty of a claimis no defence. But generally, the judicial process leading torecognition of new tort situations is slow and concealed for judgesare cautious in making innovations and they seldom proclaimtheir creative role. Normally, a new principle is judicially acceptedto accommodate new ideas of social welfare or public policyonly after they have gained their recognition in the society forexample in extra judicial writings and even then the decisionaccepting the new principle is supported mainly by expansion orrestriction of existing principles which ‘gradually receive a newcontent and at last a new form’.

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

This Committee is of the view that it is in the spirit of theobservation in M.C. Mehta v. Union of India that this Courtneeds to lay down principles on which liability could befastened and damages assessed in cases in which due tobehaviour of mobs and riotous groups public and privateproperty is vandalized and loss of life and injury isoccasioned to innocent persons. These are clearly “unusualsituations”, which have arisen and likely to arise in future andneed to be provided for in the larger interest of justice.

It is on the principles set out above that (it is suggested) that theHon’ble Court should frame guidelines and venture to evolve A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

new principles (of liability) to meet situations that have alreadyarisen in the past and are likely to arise again in future, so thatspeedy remedies become available to persons affected by lossof life, injury and loss of properties, public or private, as a resultof riots and civil commotions.

Damages in the law of torts in India include:

(a) damages based on the concept of restituto in interregnum toenable total recompense; and (b) exemplary damages”

14. The basic principles as suggested by NarimanCommittee 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 ininterregnum’ 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 ofdamages the Court should as nearly as possible get at that sumof money which will put the party who has suffered, in the sameposition as he would have been in if he had not sustained thewrong for which he is now getting his compensation or reparation.

(3) In this branch of the law, the principle of restitution ininterregnum has been described as the “dominant” rule of law.Subsidiary rules can only be justified if they give effect to thatrule.

(3.1) In actions in tort where damages are at large i.e. not limitedto the pecuniary loss that can be specifically proved, the Courtmay also take into account the defendant’s motives, conductand manner of committing the tort, and where these haveaggravated the plaintiff’s damage e.g. by injuring his properfeelings of dignity, safety and pride - aggravated damages maybe awarded. Aggravated damages are designed to compensatethe plaintiff for his wounded feelings-they must be distinguishedfrom exemplary damages which are punitive in nature and which(under English Law) may be awarded in a limited category ofcases.

(3.2) “Exemplary damages” has been a controversial topic formany years. Such damages are not compensatory but areawarded to punish the defendant and to deter him and othersfrom similar behaviour in the future. The law in England (asrestated in Rookes v. Barnard affirmed in Cassell v. Broome) isthat such damages are not generally allowed. In England theycan only be awarded in three classes of cases (i) where there isoppressive, arbitrary or unconstitutional action by servants ofthe Government; (ii) where the defendants conduct has beencalculated by him to make a profit for himself which may wellexceed the compensation payable to the claimant; and (iii) wheresuch damages are provided by statute.

(3.3) In the decision in Kuddus v. Chief Constable ofLeicestershire Constabulary, the most recent judgment of theHouse of Lords, the Law Lords did not say that in the future theaward of exemplary damages should be restricted only in thecases 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’sdiscretionary jurisdiction to award exemplary damages is conductwhich was such as to be an outrageous disregard of the claimant’srights.

(3.4) “ In this committee’s view, the principle that Courtsin India are not limited in the law of torts merely to whatEnglish Courts say or do, is attracted to the presentsituation. This Committee is of the view that this Hon’bleCourt should evolve a principle of liability - punitive innature - on account of vandalism and rioting leading todamages/destruction of property public and private.Damages must also be such as would deter people fromsimilar behaviour in the future: after all this is already thepolicy of the law as stated in the Prevention of Damage toProperty Act, 1984, and is foreshadowed in the order ofthis Hon’ble Court dated 18-06-2007 making the presentreference.

(3.5) In a Winfield and Jolowicz on Tort 17[th] Edn. (at pp. 948-49) the authors set out the future of exemplary damages by AB

C

D

E

F

G

H

A

B

C

D

E

F

G

H

SUPREME COURT REPORTS

quoting from the decision in Kuddus v. Chief Constable ofLeicestershire Constabulary where two Law Lords Lord Nichollsand Lord Hutton expressed the view that such damages mighthave a valuable role to play in dealing with outrageous behaviour.The authors point out that the boundaries between the civil andcriminal law are not rigid or immutable and the criminal processalone is not an adequate mechanism to deter willful wrong-doing.The acceptability of the principle of compensation withpunishment appears to have been confirmed by the Privy Council(in Gleaner Co Ltd. Vs. Abrahams AC at 54) where it wasfelicitously said that: (AC P.647, para 54)

“54. …oil and vinegar may not mix in solution but they combineto make an acceptable salad dressing.”

(3.6) The authors go on to say that exemplary damages certainlyenjoy a continuing vitality in other common law jurisdictions,which, by and large, have rejected the various shackles imposedon them in England and extended them to other situations: thuspunitive damages was held to be available in Australia “in casesof “outrageous” acts of negligence. The Law Commission ofAustralia has also concluded - after a fairly evenly balancedconsultation-that exemplary damages should be retained wherethe defendant “had deliberately and outrageously disregardedthe plaintiffs rights.”

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

(I) Wherever a mass destruction to property takes placedue to protests or thereof, the High Court may issue suomotu action and set up a machinery to investigate thedamage caused and to award compensation related thereto.

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

(III) In each case, the High Court or Supreme Court, asthe case may be, appoint a sitting or retired High Courtjudge or a sitting or retired District judge as a ClaimsCommissioner to estimate the damages and investigateliability.

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

(V) The Claims Commissioner and the Assessor may seekinstructions from the High Court or Supreme Court asthe case may be, to summon the existing video or otherrecordings from private and public sources to pinpoint thedamage and establish nexus with the perpetrators of thedamage.

(VI) The principles of absolute liability shall apply oncethe nexus with the event that precipitated the damage isestablished.

(VII) The liability will be borne by the actual perpetratorsof the crime as well as organisers of the event giving riseto the liability - to be shared, as finally determined by theHigh Court or Supreme Court as the case may be.

(VIII) Exemplary damages may be awarded to an extentnot greater than twice the amount of the damages liableto 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 totake preventive and other actions.

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

16. The recommendations of Justice K.T. ThomasCommittee and Mr F.S. Nariman Committee above whichhave the approval of this Court shall immediately becomeoperative. They shall be operative as guidelines.

xxx

A

B

C

D

E

F

G

H

A28. 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 forriot cases.

This issue was examined by the Nariman Committee whichBconsidered:

“… where (in such cases) there is destruction/damage toproperties 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. 2of the Report).

C

29. These guidelines shall cease to be operative as andwhen appropriate legislation consistent with the guidelinesindicated above are put in place and/or any fast trackmechanism is created by the statute(s).”

D

(emphasis supplied)

After having noted the recommendations made by the Committeesappointed by the Court, in paragraphs 16, 28 and 29 the Court declaredthat the stated recommendations had the approval of the Court and shallimmediately become operative.E

4. Taking a cue from this decision, the petitioners have prayedfor the reliefs reproduced in paragraph 2 above. To buttress the reliefsin the writ petition, the petitioners have articulated some suggestions toameliorate and curb the occurrence of such events. The suggestionsgiven by the petitioners read thus:F

“A. Regarding protection to freedom of speech andexpression

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

G

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

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 betaken through e-mail or letter.

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

5. The police shall ensure videography of such protests and thevideos thus recorded shall be transmitted to a central server undercopy 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 mediaand others on the incidents in question, and media and publicshall support police by sharing such information.

7. The police shall immediately inform the State Government withreports 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 receptionwindow’ on its website/app enabling people to send instances ofmob violence, destructive acts and hate speech in whatever form,including the spurious videos and face news. The police shallalso make their own arrangements for photographing violentprotests, and take immediate steps to find out the identity of thepersons involved in such activity.

9. If any such incident is reported to Police, the police shall withoutdelay register FIR with the names of the persons so identifiedand arrest those persons who are involved in the violent protestsor hate speech, and follow the process of law.

10. Provision shall be made by the State Police for onlineregistration of FIR and information regarding this facility shallbe widely disseminated so that the common man is encouragedto report offences without facing the hurdles of proceduralformalities. For constructive use of the facility, identity proof A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

and verification via OTP to the registered mobile number or emailid of the user may be mandated.

11. The police shall immediately conduct an investigation intothe genuineness of the audio and video content within a periodof 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 ofdepositing the amount commensurate with the loss/damage,caused by such act/s directly and indirectly, as assessed by thepolice.

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

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

14. Any person who through speech, statement or otherwiseappeals or calls for (a) violent protests or (b) destruction of property or

(c) use of force to stop citizens from exercising their fundamentalrights or (d) incitement to hatred Shall be immediately arrested and prosecuted under relevantprovisions of law including S.153A, 295A read with section 298IPC as the case may be.

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

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

17. The judgment of acquittal or conviction shall be uploaded onthe website of the police where the progress report of investigationis uploaded.

D.Regarding liability of organizations, groups etc.

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

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

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

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

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

E.Regarding accountability of police

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

24. Departmental action shall be initiated against those policeofficers who are apparently inactive during such protests and do A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

not take necessary action as required within a period of onemonth from the date of incident.

25. Any delay in taking appropriate action by the police shouldbe explained with reasons by the DGP and necessarycommunication to this effect shall be made through public noticeincluding through official website of the Police.

F. Regarding claims tribunal and award of compensation

26. The owners of private property that is destroyed by mobviolence/protestors or their representatives in interest shall beentitled to claim compensation for destruction caused to theirproperty, movable and immovable. The claims for compensationfor destruction of private property and the claim for restorationcosts shall be filed before a Claims Tribunal which shall beconstituted by the State Government to investigate the damagecaused and to award compensation related thereto. The ClaimsTribunal shall comprise of a sitting or retired High Court judge ora sitting or retired District judge (Chairperson) and such othermembers (Assessors) as may be prescribed by the government.The Tribunal shall follow a time bound summary procedure asmay be prescribed by the Government so that the claims aredisbursed within 6 months from the occurrence.

27. The State Government and Director General of Police shallhand over to the Claims Tribunal the video or other recordingsfrom private and public sources that would enable the ClaimsTribunal to pinpoint the damage and establish nexus with theperpetrators of the damage.

28. The principles of absolute liability shall apply once the nexuswith 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 takepreventive and other actions.

30. Exemplary damages may be awarded to an extent notgreater than twice the amount of the damages liable to be paid.

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

32. The liability to pay compensation shall be apportioned by theTribunal 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 personsare members whereof, in case the organizations do not makestatement of disownment and expel such members.

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

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

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

35. All democratic protests without violence, against thegovernment policy/action or for social causes shall be dulyrespected and shall not incur any liability.

36. Raising slogans against the government or its leaders shallnot be treated as hate speech or as an offence. The protestersshall have the right to carry posters, banners, effigies etc. toshow their mark of protest.”

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

6. Mr. Venugopal is unequivocal in his submission that violentprotests which lead to loss of life and damage to public and privateproperties are against the spirit of democracy. He submits that pursuantto the judgment in In Re: Destruction of Public and Private Properties(supra),the Union of India has advised the respondent states to follow A

B

C

D

E

F

G

H

Athe guidelines laid down therein vide letter dated 6[th] May, 2013[2 ] 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 6[th] May, 2013To The Chief SecretariesAll State Govts./UTsBSubject:Destruction and Damage to Public Properties in the name of agitations, Bandhs, Hartals etc.-guidelines for prevention of such destructive activities – regarding.Sir/madamThe Hon’ble Supreme Court of India taking a serious note of various instances where there waslarge scale destruction of public and private properties in the name of agitations, bandhs hartals and the likevide order dated 16.04.2009 in W.P. (Crl.) No.77/2007 in the matter of Destruction of Public & PrivateProperties Vs. State of A.P. and Ors. directed that the following guidelines should be observed as soon asthere is a demonstration organized to effectuate the modalities for preventive action and adding teeth toenquiry/investigation:-(i)If the officer in charge of a police station or other law enforcing agency is of the opinion that any directCaction, either declared or undeclared has the potential of causing destruction or damage to publicproperty, he shall avail himself of the services of video operators. For this purpose each police stationshall be empowered to maintain a panel of local video operators who could be made available at shortnotices.(ii) The police officer who has the responsibility to act on the information that a direct action is imminentand if he has reason to apprehend that such direct action has the potential of causing destruction ofpublic property, he shall immediately avail himself of the services of the video-grapher to accompanyhim or any other police officer deputed by him to the site or any other place wherefrom video shootingcan conveniently be arranged concentrating on the person/persons indulging in any acts of violenceDor other acts causing destruction of damage to any property.(iii) No sooner than the direct action subsides, the police officer concerned shall authenticate the videoby producing the video grapher before the Sub divisional or Executive Magistrate who shall recordhis statement regarding what he did for preparing the video graph. The original tapes or |CD or othermaterial capable of displaying the recorded evidence shall be produced before the said Magistrate

. The original tapes or |CD or othermaterial capable of displaying the recorded evidence shall be produced before the said Magistrate. Itis open to the Magistrate to entrust such CD/material to the custody of the police officer or any otherperson 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 conditionsfor a peaceful march or protest.E(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 eachrelevant junction.(vii) The police and State Government shall ensure videography of such protests to the maximum extentpossible.(viii)The person in charge to supervise the demonstration shall be the SP (if the situation is confined tothe district) and the highest police officer in the State, where the situation stretches beyond onedistrict.(ix) In the event that demonstrations turn violent, the officer-in-charge shall ensure that the events areFvideographed through private operators and also request such further information from the media andothers on the incidents in question.(x)The Police shall immediately inform the State Government with reports on the events, includingdamage, if any caused.(xi) The State Government shall prepare a report on the police reports and other information that may beavailable to it and shall file a petition including its reports in the High Court or Supreme Court as thecase 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 theConstitution of India, the Union Government attaches highest importance to prevention of crime.GTherefore has been advising the State Governments/Union Territory Administration from time to timeto give more focused attention to the administration of the criminal justice system with emphasis onprevention and control of crime.3.In view of the Hon’ble Supreme Courts directions, all the State Movements/UTs are advised to takeappropriate steps for effective prevention, detection, registration, investigation and prosecution of allcrimes within their jurisdiction.Copy to:Yours faithfully.The Pri. Secretary/Secretary (Home) of all State Govts./UTs.(Rakesh Singh) Joint Secretary to the Govt. ofIndiaHThe Director General of Police of all State Govt./UTs” Tele No.23092736

Act in line with the said guidelines, which is currently under discussionwith the stakeholders. The Union of India vide letter dated 26[th] March,2018[3] has also requested the States and Union Territories to appoint oneor more district/additional district judges, in consultation with theirrespective High Courts, to deal with cases of damage to public propertyon a whole-time or part-time basis. Pending the outcome of the aforesaiddiscussions, and as an interim measure, the learned Attorney Generalhas also given certain written suggestions to increase accountability andtimelines for law-enforcement bodies in relation to such acts of mobviolence. We shall advert to the proposed amendments to the PDPP Actand the written suggestions shortly.

7. The present petition highlights the disconcerting rise in theprotests 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. Inaddition to being patently illegal and unlawful, such acts of violencehighlight a deeper malaise, one of intolerance towards others’ viewswhich then results in attempts to suppress alternate view points, artisticintegrity and the freedom of speech and expression guaranteed by theConstitution 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 26[th] 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 KoshyJacob Vs. Union of India & Ors.Sir, The Hon’ble Supreme Court in its Judgment dated 28-11-2017 in the above mentionedwrit petition, on the issue of dealing with cases of damage to public property has observedthat one or more district/additional district judges can be appointed by the State Governmentin consultation with the High Court to deal with such issues either on whole-time basis oron part-time basis, as the situation may require. In such cases, cadre strength of the judicialofficers may require suitable temporary or permanent increase.

2. It is therefore requested that States/UTs may comply with the directions of theSupreme Court’s order.

Yours faithfully,(Krishan Kumar)Deputy Secretary (CS-I)Tel:23075291

End.- As aboveCopy to;-

1. Home Secretaries of all State Governments & UT Administrations

2. DGPs of all State Governments & UT Administrations.”

A

B

C

D

E

F

G

H

Aespecially against private parties, do so without fear of consequenceand reprisal, probably believing that private parties do not have thewherewithal to hold them accountable for such actions. In such situations,the State must step in and perform its duty by taking measures to preventsuch actions from occurring in the first place, ensuring that law-enforcement agencies exercise their power to bring the guilty parties toBbook and imposing time-bound and adequate punishment for any lapses.This Court has time and time again underscored the supremacy of lawand that one must not forget that administration of law can only be doneby law-enforcing agencies recognised by law. Nobody has the right tobecome a self-appointed guardian of the law and forcibly administer hisCor her own interpretation of the law on others, especially not with violentmeans. Mob violence runs against the very core of our established legalprinciples since it signals chaos and lawlessness and the State has a dutyto protect its citizens against the illegal and reprehensible acts of suchgroups. Very recently, we have dealt with almost similar grievances inTehseen S. Poonawalla Vs. Union of India & Ors.[4]D

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

9. There is a broad consensus that the recommendations madeand directions given in In Re: Destruction of Public and PrivateProperties(supra), at paragraph 3 hereinabove are comprehensive todeal with the issue of large-scale destruction of private and publicFproperties which unwinds during violent protests and demonstrations.We find that the Committee’s recommendations noted in the saidjudgment traverse the length and breadth of the issue at hand and, ifimplemented in their entirety, would go a long way in removing the baneof violence caused against persons and property. As far as implementationGof the said recommendations, is concerned, and as stated earlier, thelearned Attorney General’s submission is that the Union is mindful of thedictum 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 2018HSC 3354

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

and also drafted a bill for initiating legislative changes in conformitywith the recommendations of this Court, namely, The Prevention ofDamage to Public Property (Amendment) Bill, 2015, which is currentlybeing examined in consultation with the Ministry of Law and Justice.The Bill reads as under:

A

“ANNEXURE – 1

[2018] 12 S.C.R.

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

F

For the time being, we do not wish to comment on the efficacy of theproposed legislative changes including as to whether it would fully addressthe points noted in the guidelines/recommendations in In Re: Destructionof Public and Private Properties(supra). We keep that issue open tobe 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 rightearnest.

G

10. On the issue of whether additional measures need to beintroduced, the learned Attorney General has also made certainsuggestions which can be implemented as interim measures, pending H

Athe outcome of the aforestated Bill, to fasten accountability and prescribetimelines for the law-enforcement agencies. The same are set outhereunder:

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

B

a. The offence is covered under Section 3 of the PDPP Act,which provides that whoever commits mischief by doing any actin respect of any public property shall be punished withimprisonment and fine. Mischief has been defined under Section425 of the Indian Penal Code as – “whoever with intent to cause,or knowing that he is likely to cause, wrongful loss or damage tothe public or to any person, causes the destruction of any property,or any such change in any property or in the situation thereof asdestroys or diminishes its value or utility, or affects it injuriously,commits “mischief”.

C

D

b. This Court may consider the example of the Delhi DevelopmentAuthority, where, in order to deal with illegal encroachments,the DDA has divided the city into various zones and placed themunder different officers who would be held responsible in casethere were building law violations in their respective zones. Thishas had the result of improving accountability and reducedinstances of illegal encroachment.

E

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

F

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

e. Accordingly, the State Governments may be directed to pinthe responsibility of maintaining law and order during suchprotests, bands, etc. on the Senior Superintendent of police incharge of that district. If this is done, in all future cases, theCourts can seek a response directly from the SSP regardingvideo recordings, details of FIRs filed, steps taken etc.

G

f. In addition, the Court may direct, each police station to maintaina panel of local video operators who could be made available at H

short notices to videograph the incidents of violence and damageto public property etc.

g. Further, the States can consider setting up helplines tospecifically deal with instances of violence or damage to propertycaused during such protests, and have a force that immediatelydeals with complaints made on such helplines.”

11. At this stage, it would be apposite to also consider the judgmentrendered 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 violenceand the resulting restraints on personal liberty and free speech. In thatcase, the petitioners had prayed for a writ to take measures to curbincidents of lynching and mob violence in respect of cattle trade andrelated activities. At the macro level, the dispensation to tackle theincidents of targeted violence and commission of offences affecting thehuman body and against private and public property by mobs operatingunder the garb of self-assumed and self-appointed protectors of lawwould be similar to that of damage caused due to mob violence for anyother cause. Taking note of burgeoning instances of vigilantism andlynching, this Court propounded that states had the duty to ensure thatindividuals or groups did not take the law into their own hands to preventuntoward incidents and to prevent crime which may include damagecaused to property. In that context, the Court observed:

“19. Mob vigilantism and mob violence have to be prevented bythe governments by taking strict action and by the vigil societywho ought to report such incidents to the state machinery andthe police instead of taking the law into their own hands. Risingintolerance and growing polarisation expressed through spate ofincidents of mob violence cannot be permitted to become thenormal way of life or the normal state of law and order in thecountry. Good governance and nation building require sustenanceof law and order which is intricately linked to the preservation ofthe marrows of our social structure. In such a situation, the Statehas a sacrosanct duty to protect its citizens from unruly elementsand perpetrators of orchestrated lynching and vigilantism withutmost sincerity and true commitment to address and curb suchincidents which must reflect in its actions and schemes.

20. Hate crimes as a product of intolerance, ideological dominanceand prejudice ought not to be tolerated; lest it results in a reign of A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

terror. Extra judicial elements and non-State actors cannot beallowed to take the place of law or the law enforcing agency. Afabricated identity with bigoted approach sans acceptanceof plurality and diversity results in provocative sentimentsand display of reactionary retributive attitude transformingitself into dehumanisation of human beings. Such anatmosphere is one in which rational debate, logicaldiscussion and sound administration of law eludes therebymanifesting clear danger to various freedoms includingfreedom of speech and expression. One man’s freedom ofthought, action, speech, expression, belief, conscience andpersonal choices is not being tolerated by the other andthis is due to lack of objective rationalisation of acts andsituations. In this regard, it has been aptly said:- “Freedom ofspeech is a principal pillar of a free government; When this supportis taken away, the constitution of a free society is dissolved andtyranny is erected on its ruins.”

21. Freedom of speech and expression in different formsis the élan vital of sustenance of all other rights and is thevery seed for germinating the growth of democratic views.Plurality of voices celebrates the constitutionalist idea of a liberaldemocracy and ought not to be suppressed. That is the idea andessence of our nation which cannot be, to borrow a line fromRabindranath Tagore, “broken up into fragments by narrowdomestic walls” of caste, creed, race, class or religion. Pluralismand tolerance are essential virtues and constitute the buildingblocks of a truly free and democratic society. It must beemphatically stated that a dynamic contemporary constitutionaldemocracy imbibes the essential feature of accommodatingpluralism in thought and approach so as to preserve cohesivenessand unity. Intolerance arising out of a dogmatic mindsetsows the seeds of upheaval and has a chilling effect onfreedom of thought and expression. Hence, tolerance hasto be fostered and practised and not allowed to be dilutedin any manner.

22. In S. Rangarajan v. P. Jagjivan Ram and others, K.Jagannatha Shetty, J., although in a different context, referred tothe decision of the European Court of Human Rights in Handyside v. United Kingdom wherein it has been held thusin the context of Article 10 of the European Convention on HumanRights (ECHR):- “The court’s supervisory functions oblige it to pay the utmostattention to the principles characterizing a ‘democratic society’.Freedom of expression constitutes one of the essentialfoundations of such a society, one of the basic conditions for itsprogress and for the development of every man. Subject to Article10(2), it is applicable not only to ‘information’ or ‘ideas’ that arefavourably received or regarded as inoffensive or as a matter ofindifference, but also to those that offend, shock or disturb theState or any sector of the population. Such are the demands ofthat pluralism, tolerance and broadmindedness without whichthere is no ‘democratic society’.”

23. In a rights based approach to constitutional legitimacy, theright to life and liberty is considered paramount and, therefore,democratic governments must propel and drive towards strongerfoothold for liberties so as to ensure sustenance of higher valuesof democracy thereby paving the path for a spontaneousconstitutional order. Crime knows no religion and neither theperpetrator nor the victim can be viewed through the lens ofrace, caste, class or religion. The State has a positive obligationto protect the fundamental rights and freedoms of all individualsirrespective of race, caste, class or religion. The State has theprimary responsibility to foster a secular, pluralistic andmulticulturalistic social order so as to allow free play of ideasand beliefs and co-existence of mutually contradictoryperspectives. Stifling free voices can never bode well for atrue democracy. It is essential to build societies whichembrace diversity in all spheres and rebuild trust of thecitizenry in the State machinery.”

(emphasis supplied)

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

“40. In view of the aforesaid, we proceed to issue the followingguidelines:- A

B

C

D

E

F

G

H

A. Preventive Measures

A

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

B

(ii) The State Governments shall forthwith identify Districts, Sub-Divisions and/or Villages where instances of lynching and mobviolence have been reported in the recent past, say, in the lastfive years. The process of identification should be done within aperiod of three weeks from the date of this judgment, as suchtime period is sufficient to get the task done in today’s fast worldof data collection.

C

D

(iii) The Secretary, Home Department of the concerned Statesshall issue directives/advisories to the Nodal Officers of theconcerned districts for ensuring that the Officer In-charge ofthe Police Stations of the identified areas are extra cautious ifany instance of mob violence within their jurisdiction comes totheir notice.

E

(iv) The Nodal Officer, so designated, shall hold regular meetings(at least once a month) with the local intelligence units in thedistrict along with all Station House Officers of the district so asFto identify the existence of the tendencies of vigilantism, mobviolence or lynching in the district and take steps to prohibitinstances of dissemination of offensive material through differentsocial media platforms or any other means for inciting suchtendencies. The Nodal Officer shall also make efforts to eradicateGhostile environment against any community or caste which istargeted in such incidents.

(v) The Director General of Police/the Secretary, HomeDepartment of the concerned States shall take regular reviewmeetings (at least once a quarter) with all the Nodal Officersand State Police Intelligence heads. The Nodal Officers shall H

bring to the notice of the DGP any inter-district co-ordinationissues for devising a strategy to tackle lynching and mob violencerelated issues at the State level.

(vi) It shall be the duty of every police officer to cause a mob todisperse, by exercising his power under Section 129 of CrPC,which, in his opinion, has a tendency to cause violence or wreakthe havoc of lynching in the disguise of vigilantism or otherwise.

(vii) The Home Department of the Government of India musttake initiative and work in co-ordination with the StateGovernments for sensitising the law enforcement agencies andby involving all the stake holders to identify the measures forprevention of mob violence and lynching against any caste orcommunity and to implement the constitutional goal of social justiceand the Rule of Law.

(viii) The Director General of Police shall issue a circular to theSuperintendents of Police with regard to police patrolling in thesensitive areas keeping in view the incidents of the past and theintelligence obtained by the office of the Director General. Itsingularly means that there should be seriousness in patrolling sothat the anti-social elements involved in such crimes arediscouraged and remain within the boundaries of law thus fearingto even think of taking the law into their own hands.

(ix) The Central and the State Governments should broadcaston radio and television and other media platforms including theofficial websites of the Home Department and Police of theStates that lynching and mob violence of any kind shall inviteserious consequence under the law.

(x) It shall be the duty of the Central Government as well as theState Governments to take steps to curb and stop disseminationof irresponsible and explosive messages, videos and othermaterial on various social media platforms which have a tendencyto incite mob violence and lynching of any kind.

(xi) The police shall cause to register FIR under Section 153A ofIPC and/or other relevant provisions of law against persons whodisseminate irresponsible and explosive messages and videoshaving content which is likely to incite mob violence and lynchingof any kind.

A

B

C

DE

F

G

H

(xii) The Central Government shall also issue appropriatedirections/advisories to the State Governments which wouldreflect the gravity and seriousness of the situation and themeasures to be taken.

A

B. Remedial Measures

B

(i) Despite the preventive measures taken by the State Police, ifit comes to the notice of the local police that an incident oflynching or mob violence has taken place, the jurisdictional policestation shall immediately cause to lodge an FIR, without anyundue delay, under the relevant provisions of IPC and/or otherprovisions of law.

C

(ii) It shall be the duty of the Station House Officer, in whosepolice station such FIR is registered, to forthwith intimate theNodal Officer in the district who shall, in turn, ensure that thereis no further harassment of the family members of the victim(s).

D

(iii) Investigation in such offences shall be personally monitoredby the Nodal Officer who shall be duty bound to ensure that theinvestigation is carried out effectively and the charge-sheet insuch cases is filed within the statutory period from the date ofregistration of the FIR or arrest of the accused, as the case maybe.

E

(iv) The State Governments shall prepare a lynching/mob violencevictim compensation scheme in the light of the provisions ofSection 357A of CrPC within one month from the date of thisjudgment. In the said scheme for computation of compensation,Fthe State Governments shall give due regard to the nature ofbodily injury, psychological injury and loss of earnings includingloss of opportunities of employment and education and expensesincurred on account of legal and medical expenses. The saidcompensation scheme must also have a provision for interimrelief to be paid to the victim(s) or to the next of kin of theGdeceased within a period of thirty days of the incident of mobviolence/lynching.

(v) The cases of lynching and mob violence shall be specificallytried by designated court/Fast Track Courts earmarked for thatpurpose in each district. Such courts shall hold trial of the caseon a day to day basis. The trial shall preferably be concluded H

within six months from the date of taking cognizance. We mayhasten to add that this direction shall apply to even pending cases.The District Judge shall assign those cases as far as possible toone jurisdictional court so as to ensure expeditious disposalthereof. It shall be the duty of the State Governments and theNodal Officers in particular to see that the prosecuting agencystrictly 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 mustordinarily award maximum sentence as provided for variousoffences under the provisions of the IPC.

(vii) The courts trying the cases of mob violence and lynchingmay, on application by a witness or by the public prosecutor inrelation to such witness or on its own motion, take such measures,as it deems fit, for protection and for concealing the identity andaddress of the witness.

(viii) The victim(s) or the next of kin of the deceased in cases ofmob violence and lynching shall be given timely notice of anycourt proceedings and he/she shall be entitled to be heard at thetrial in respect of applications such as bail, discharge, releaseand parole filed by the accused persons. They shall also havethe right to file written submissions on conviction, acquittal orsentencing.

(ix) The victim(s) or the next of kin of the deceased in cases ofmob violence and lynching shall receive free legal aid if he orshe so chooses and engage any advocate of his/her choice fromamongst those enrolled in the legal aid panel under the LegalServices Authorities Act, 1987.

C. Punitive Measures

(i) Wherever it is found that a police officer or an officer of thedistrict administration has failed to comply with the aforesaiddirections in order to prevent and/or investigate and/or facilitateexpeditious trial of any crime of mob violence and lynching, thesame shall be considered as an act of deliberate negligence and/or misconduct for which appropriate action must be taken againsthim/her and not limited to departmental action under the servicerules. The departmental action shall be taken to its logical A

B

C

D

E

F

G

H

Aconclusion preferably within six months by the authority of thefirst 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 disciplinaryaction against the concerned officials if it is found that (i) suchBofficial(s) did not prevent the incident, despite having priorknowledge of it, or (ii) where the incident has already occurred,such official(s) did not promptly apprehend and institute criminalproceedings against the culprits.

41. The measures that are directed to be taken have to be carriedCout within four weeks by the Central and the State Governments.Reports of compliance be filed within the said period before theRegistry of this Court.”

These recommendations comprehensively set out the manner in whichthe State and law-enforcement agencies are expected to deal with theDmenace of mob violence specifically lynching and vigilantism and further,assign responsibility and accountability to officials to curb such incidentsas also punitive measures to deter law enforcement agencies from shirkingtheir duties.

13. Our attention was also invited to the decision in Koshy JacobEVs. Union of India and Ors.,[5 ] wherein an identical direction was soughtfor implementation of guidelines issued by this Court In Re: Destructionof Public and Private Properties (supra). The two-Judge Bench, afteradverting to the stand taken by the Union of India in its reply affidavitand the statement made by the Attorney General for India, disposed ofthe said writ petition in the following terms:F

“10. In view of the stand in the counter affidavit and the statementof learned Attorney General, we do hope that the law nowproposed by the Union of India is brought into force within areasonable time to address all concerned issues. Learned AttorneyGeneral has very fairly stated that the law may provide for speedyGmechanism for criminal liability, action for administrative failuresas well as remedies to the victims. A suggestion has been madethat one or more district/additional district judges can be appointedby the State Government in consultation with the High Court todeal with such issue either on whole-time basis or on part-time H5 (2018) 11 SCC 756

basis, as the situation may require. In such cases cadre strengthof the judicial officers may require suitable temporary orpermanent increase. This suggestion can be considered in thecourse 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. Thepetitioner is at liberty to take his remedy at appropriate forum inaccordance with law.

The writ petition is accordingly disposed of.”

14. In Tehseen Poonawalla (supra), the Court adverted to thedecision in Shakti Vahini Vs. Union of India and Ors.,[6] wherein theCourt was called upon to address the issue of honour killing and otherforms of honour crimes inflicted on young couples/families by KhapPanahcayats. In paragraph 55, the Court issued directions to the Statesto take measures to evolve a robust mechanism to meet the challengesof the agonizing effect of honour crimes by Khap Panchayats. Paragraph55 reads thus:

“55. Mr Raju Ramachandran, learned Senior Counsel beingassisted by Mr Gaurav Agarwal, has filed certain suggestionsfor issuing guidelines. The Union of India has also given certainsuggestions 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 punitivemeasures and, accordingly, we state the broad contours and themodalities with liberty to the executive and the policeadministration of the States concerned to add further measuresto 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 orassembly of khap panchayats have been reported in the recentpast, e.g., in the last five years.

55.1.2. The Secretary, Home Department of the Statesconcerned shall issue directives/advisories to the Superintendentof Police of the districts concerned for ensuring that the officer A

B

C

D

EF

G

H

A

B

C

D

E

F

G

H

in charge of the police stations of the identified areas are extracautious if any instance of inter-caste or inter-religious marriagewithin their jurisdiction comes to their notice.

55.1.3. If information about any proposed gathering of a khappanchayat comes to the knowledge of any police officer or anyofficer of the District Administration, he shall forthwith informhis immediate superior officer and also simultaneously intimatethe jurisdictional Deputy Superintendent of Police andSuperintendent of Police.

55.1.4. On receiving such information, the Deputy Superintendentof Police (or such senior police officer as identified by the StateGovernments with respect to the area/district) shall immediatelyinteract with the members of the khap panchayat and impressupon them that convening of such meeting/gathering is notpermissible in law and to eschew from going ahead with such ameeting. Additionally, he should issue appropriate directions tothe officer in charge of the jurisdictional police station to be vigilantand, if necessary, to deploy adequate police force for preventionof assembly of the proposed gathering.

55.1.5. Despite taking such measures, if the meeting isconducted, the Deputy Superintendent of Police shall personallyremain present during the meeting and impress upon the assemblythat no decision can be taken to cause any harm to the couple orthe family members of the couple, failing which each oneparticipating in the meeting besides the organisers would bepersonally liable for criminal prosecution. He shall also ensurethat video recording of the discussion and participation of themembers 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 interactionwith the members of the khap panchayat, has reason to believethat the gathering cannot be prevented and/or is likely to causeharm to the couple or members of their family, he shall forthwithsubmit a proposal to the District Magistrate/Sub-DivisionalMagistrate of the District/Competent Authority of the areaconcerned for issuing orders to take preventive steps under CrPC,including by invoking prohibitory orders under Section 144 CrPC

and also by causing arrest of the participants in the assemblyunder Section 151 CrPC.

55.1.7. The Home Department of the Government of India musttake initiative and work in coordination with the StateGovernments for sensitising the law enforcement agencies andby involving all the stake holders to identify the measures forprevention of such violence and to implement the constitutionalgoal of social justice and the rule of law.

55.1.8. There should be an institutional machinery with thenecessary coordination of all the stakeholders. The different StateGovernments and the Centre ought to work on sensitisation ofthe law enforcement agencies to mandate social initiatives andawareness 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 panchayathas taken place and it has passed any diktat to take action againsta couple/family of an inter-caste or inter-religious marriage (orany other marriage which does not meet their acceptance), thejurisdictional police official shall cause to immediately lodge anFIR under the appropriate provisions of the Penal Code includingSections 141, 143, 503 read with Section 506 IPC.

55.2.2. Upon registration of FIR, intimation shall be simultaneouslygiven to the Superintendent of Police/Deputy Superintendent ofPolice who, in turn, shall ensure that effective investigation ofthe crime is done and taken to its logical end with promptitude.

55.2.3. Additionally, immediate steps should be taken to providesecurity to the couple/family and, if necessary, to remove themto a safe house within the same district or elsewhere keeping inmind their safety and threat perception. The State Governmentmay consider of establishing a safe house at each DistrictHeadquarter for that purpose. Such safe houses can cater toaccommodate:

(i) young bachelor-bachelorette couples whose relationship isbeing opposed by their families/local community/khaps, and A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

(ii) young married couples (of an inter-caste or inter-religious orany other marriage being opposed by their families/localcommunity/khaps).

Such safe houses may be placed under the supervision of thejurisdictional District Magistrate and Superintendent of Police.

55.2.4. The District Magistrate/Superintendent of Police mustdeal with the complaint regarding threat administered to suchcouple/family with utmost sensitivity. It should be first ascertainedwhether the bachelor-bachelorette are capable adults. Thereafter,if necessary, they may be provided logistical support forsolemnising their marriage and/or for being duly registered underpolice protection, if they so desire. After the marriage, if thecouple so desire, they can be provided accommodation onpayment of nominal charges in the safe house initially for a periodof one month to be extended on monthly basis but not exceedingone year in aggregate, depending on their threat assessment oncase-to-case basis.

55.2.5. The initial inquiry regarding the complaint received fromthe couple (bachelor-bachelorette or a young married couple) orupon receiving information from an independent source that therelationship/marriage of such couple is opposed by their familymembers/local community/khaps shall be entrusted by the DistrictMagistrate/Superintendent of Police to an officer of the rank ofAdditional Superintendent of Police. He shall conduct apreliminary inquiry and ascertain the authenticity, nature andgravity of threat perception. On being satisfied as to theauthenticity of such threats, he shall immediately submit a reportto the Superintendent of Police in not later than one week.

55.2.6. The District Superintendent of Police, upon receipt ofsuch report, shall direct the Deputy Superintendent of Police incharge of the sub-division concerned to cause to register an FIRagainst the persons threatening the couple(s) and, if necessary,invoke Section 151 CrPC Additionally, the Deputy Superintendentof Police shall personally supervise the progress of investigationand ensure that the same is completed and taken to its logicalend with promptitude. In the course of investigation, the personsconcerned shall be booked without any exception including themembers who have participated in the assembly. If the involvement of the members of khap panchayat comes to thefore, they shall also be charged for the offence of conspiracy orabetment, as the case may be.

55.3. Punitive measures

55.3.1. Any failure by either the police or district officer/officialsto comply with the aforesaid directions shall be considered as anact of deliberate negligence and/or misconduct for whichdepartmental action must be taken under the service rules. Thedepartmental action shall be initiated and taken to its logical end,preferably not exceeding six months, by the authority of the firstinstance.

55.3.2. In terms of the ruling of this Court in Arumugam Servai7,the States are directed to take disciplinary action against theofficials concerned if it is found that:

(i) such official(s) did not prevent the incident, despite havingprior knowledge of it, or

(ii) where the incident had already occurred, such official(s) didnot promptly apprehend and institute criminal proceedings againstthe culprits.

55.3.3. The State Governments shall create Special Cells in everydistrict comprising of the Superintendent of Police, the DistrictSocial Welfare Officer and District Adi-Dravidar Welfare Officerto receive petitions/complaints of harassment of and threat tocouples of inter-caste marriage.

55.3.4. These Special Cells shall create a 24-hour helpline toreceive and register such complaints and to provide necessaryassistance/advice and protection to the couple.

55.3.5. The criminal cases pertaining to honour killing or violenceto the couple(s) shall be tried before the designated court/fasttrack court earmarked for that purpose. The trial must proceedon day-to-day basis to be concluded preferably within six monthsfrom the date of taking cognizance of the offence. We may hastento add that this direction shall apply even to pending cases. TheDistrict Judge concerned shall assign those cases, as far aspossible, to one jurisdictional court so as to ensure expeditiousdisposal thereof.”

A

B

C

D

E

F

G

H

A15. We are conscious of the fact that the crimes committed bygroups of self-appointed keepers of public morality may be on accountof different reasons or causes, but the underlying purpose of such groupof persons is to exercise unlawful power of authority and that too, withoutsanction of State and create fear in the minds of the public or, in a givensituation, section of the community. The dispensation for preventingBoccurrences of such crimes or remedial measures and punitive measureswould vest in the same police in the State. Therefore, a comprehensivestructure will have to be evolved in the respective States so that theissues of accountability and efficiency in curbing incidents of peacefulprotests turning into mob violence, causing damage to property includingCinvestigation, remedial and punitive measures, are duly addressed. Whiledoing so, the directions given by this Court in In Re: Destruction ofPublic and Private Properties (supra), Shakti Vahini (supra) andTehseen Poonawalla (supra), must be borne in mind.

16. There are overlapping areas of directions which albeit applyDto the situations referred to in the concerned decision. For the purposeof the present writ petition, we have no hesitation in observing that thedispensation can be similar to the one decided recently in TehseenPoonawalla (supra), for which reason the guidelines delineated in thesaid decision must apply proprio vigore in respect of peaceful proteststurning into mob violence, causing damage to public and private properties.EA.Ex abundanti cautela, we may hasten to clarify that similarinterim measures will operate in respect of any peaceful protest turninginto mob violence, causing loss of life or damage to public and privateproperties, including violence designed to instill fear in the minds andterrorise the common man, in the absence of any law to that effect. TheFrecommendations / directions elucidated hereunder are not exhaustivebut only to set out broad contour of the measures required to be takenand are in addition to the recommendations/directions given in In Re:Destruction of Public and Private Properties (supra):

A.Structural and preventive measuresG

a) In addition to the responsibilities ascribed to the Nodal Officer(s) asset out in TehseenPoonawalla (supra), the said Nodal Officer(s) wouldalso be responsible for creating and maintaining a list containing thevarious cultural establishments, including theatres, cinema halls, musicvenues, performance halls and centres and art galleries within the district,H

and pin point vulnerable cultural establishments and property which havebeen attacked/damaged by mob violence over the past 5 (five) years.This list would be updated on a regular basis to account for any newopenings/closings of establishments.

b) In addition to the prohibition against weaponry laid down in paragraph12 (II) of In Re: Destruction of Public and Private Properties (supra),

any person found to be carrying prohibited weaponry, licensed orotherwise, during protests/demonstrations would prima facie be presumedto have an intention to commit violence and be proceeded in that regardas per law.

c) The State governments should set up Rapid Response Teamspreferably district-wise which are specially trained to deal with and canbe quickly mobilized to respond to acts of mob violence. These teamscan also be stationed around vulnerable cultural establishments asmentioned hereinabove.

d) The State governments should set up special helplines to deal withinstances of mob violence.

e) The State police shall create and maintain a cyber-information portalon its website and on its internet-based application(s) for reportinginstances of mob violence and destruction of public and private properties.

B. Remedies to minimize, if not extirpate, the impending mobviolence

a) The Nodal Officer(s) will coordinate with local emergency services,including police stations, fire brigades, hospital and medical services anddisaster management authorities during incidents of mob violence in orderto have a comprehensive and consolidated response to the situation.

b) The authorities must consider the use of non-lethal crowd-controldevices, like water cannons and tear gas, which cause minimum injuryto people but at the same time, act as an effective deterrent against mobforce.

c) The authorities must ensure that arrests of miscreants found on thespot are done in the right earnest.

d) The Nodal Officer(s), may consider taking appropriate steps as perlaw including to impose reasonable restrictions on the social media and A

B

C

D

E

F

G

H

Ainternet-based communication services or mobile applications, by invokingenabling provisions of law during the relevant period of mob violence, ifthe situation so warrants.

e) The Nodal Officer(s) must take coordinated efforts and issue messagesacross various audio-visual mediums to restore peace and to stop/controlBrumours. 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 orindirectly, and has been made through a spokesperson or through socialCmedia accounts of any group/organization(s) or by any individual,appropriate action should be taken against such person(s) including underSections 153A, 295A read with 298 and 425 of the Indian Penal Code,1860.

b) In instances where a group/organisation has staged a protest orDdemonstration resulting in violence and damage to property, the leadersand office bearers of such group/organisation should physically presentthemselves for questioning, on their own, within 24 (twenty four) hours,in the police station within whose jurisdiction the violence and damageoccurred. Any such person(s) failing to present himself/herself in suchEmanner without any sufficient reason should be proceeded against as asuspect and legal process must be initiated forthwith against him/herincluding 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 whichFresults in loss of life or damage to property may be granted conditionalbail upon depositing the quantified loss caused due to such violence orfurnishing security for such quantified loss. In case of more than oneperson 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 isyet to be quantified by the appropriate authority, the judge hearing theGbail application may quantify the amount of tentative damages (whichshall 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 hearingthe submissions of the State/agency prosecuting the matter in that regard.

H

D. Responsibility of police officials

a) When any act of violence results in damage to property, concernedpolice officials should file FIRs and complete investigation as far aspossible within the statutory period and submit a report in that regard.Any failure to file FIRs and conduct investigations within the statutoryperiod without sufficient cause should be considered as dereliction ofduty on behalf of the concerned officer and can be proceeded againstby way of departmental action in right earnest.

b) Since the Nodal Officer(s) holds the overall responsibility in eachdistrict to prevent mob violence against cultural establishments and againstproperty, any unexplained and/or unsubstantiated delay in filing FIRsand/or conducting investigations in that regard should also be deemed tobe inaction on the part of the said Nodal Officer(s).

c) With reference to the videography mentioned in paragraphs 5(iv), 10and 12 of In Re: Destruction of Public and Private Properties (supra),the officer-in-charge should first call upon from the panel of local videooperators maintained by the concerned police station to video-recordthe events. If the said video operators are unable to record the eventsfor whatever reason or if the officer-in-charge is of the opinion thatsupplementary information is required, then he/she can also call uponprivate video operators to record the events and request the media forinformation on the incident in question, if need be.

d) Status reports of the investigation(s)/trial(s) concerning such offencesas set out hereinabove, including the results of such trial(s), shall beuploaded on the official website of the concerned State police on a regularbasis.

e) In the event of acquittal of any person(s) accused of committing suchoffences as set out hereinabove, the Nodal Officer(s) must coordinatewith the Public Prosecutor for filing appeal against such acquittal, in theright earnest.

E.Compensation

a) The person/persons who has/have initiated, promoted, instigated orany way caused to occur any act of violence against cultural programmesor which results in loss of life or damage to public or private propertyeither directly or indirectly, shall be made liable to compensate the victimsof such violence.

A

B

C

D

E

F

G

H

Ab) Claims arising out of such acts of violence should be dealt with in themanner prescribed in paragraph 15 of In Re: Destruction of Publicand Private Properties(supra).

c) This compensation should be with regard to the loss of life or damagedone to any public or private properties, both movable and immovable.

B

18. The recommendations that we have made hereinabove beimplemented by the Central and State governments as expeditiously aspossible, preferably within a period of 8 (eight) weeks from today.

19. While parting, we place on record our sincere appreciationfor the able assistance and constructive suggestions given by the learnedCAttorney General for India, the Additional Solicitor General, counsel forthe petitioners and other counsel appearing in this case.

20. We accordingly dispose of the writ petition in theaforementioned terms.

Nidhi Jain Petition disposed of.

D

E

F

G

H