A.M. Khanwilkar, J. - (1.) The petitioners have filed the present writ petition on 25th January, 2018, in the backdrop of mob violence, protests and demonstrations which erupted across the nation in the recent past, especially against cultural programmes and establishments and the ensuing damage to public and private properties arising out of such violence. Petitioner No. 1 is a registered film society and petitioner no. 2, is a member of the petitioner no.1 film society. They have highlighted law and order problems arising out of the release of several films, especially the violence surrounding the release of the film 'Padmaavat', and submit that fundamentalist outfits and fringe groups have been issuing threats and engaging in acts of violence against people and property to disrupt and prevent public exhibitions of these films on the pretext that they offend their cultural/religious sentiments. These groups engage in violence against artistic expression, with utter impunity and show complete disregard for the rule of law and constitutional values. The films which are protested against are certified for public exhibition in accordance with law under the Cinematograph Act and by attempting to stop their exhibition, these groups operate as 'super censors', exercising unlawful authority and power outside the control and without the sanction of the State. These attacks on films are part of a larger problem whereby private individuals and groups impose unlawful restraints by threatening violence upon citizens' artistic freedoms and thereby impinge on the freedom of speech and expression under Article 19(1)(a) of the Constitution of India. The petitioners contend that the respondent state governments then themselves ban the exhibition of such films, citing law and order problems, without clamping down on the root cause of such problems namely the individuals and groups who incite and commit violence. It is also contended that many such groups have tacit support from the political parties in power.
(2.) The petitioners have consequently prayed for the following reliefs: "a) Issue a writ in the nature of mandamus, or any other appropriate writ, direction or order directing the respondents to strictly follow and implement the guidelines formulated by this Hon'ble Court in In Re: Destruction of Public and Private Properties v. Govt. of AP, 2009 5 SCC 212 with regard to measures to be taken to prevent destruction of public and private properties in mass protestes and demonstrations, and also regarding the modalities of fixing liability and recovering compensation for damages caused to public and private properties during such demonstrations and protests, particularly mentioned in Paragraph 12 and 15 of SCC Report of the said judgment. b) appoint Claims Commissioner in the manner stated in paragraph 15 of the judgment in In Re: Destruction of Public and Private Properties v. Govt. of AP, 2009 5 SCC 212 to assess damages caused to public and private properties by protestors and also to fix liability not only on the perpetrators but also on the leaders of the groups/outfits/organizations which instigated agitations with their threats against film makers and exhibitors and through their call for destroying multiplexes, malls, cinemahalls, theaters etc. in order to prevent the exhibition of films; c) Issue a writ or order or direction in the nature of Mandamus or any other appropriate Writ or order directing all the state governments to initiate forthwith action under the Indian Penal Code 1860 and the Prevention of Destruction to Public Property Act 1984 against persons who commit, cause to commit and incite violence and acts of destruction with the intention of preventing and disrupting the screening of films which are certified for public exhibition under the Cinematograph Act, 1952 as it is violative of Article 19 (1)(a) of the Constitution of India, in the interest of justice; and ; d) Issue a writ or order or direction in the nature of Mandamus or any other appropriate Writ or order directing the respondents to recover the additional expenditure involved in providing security to film exhibition centers from those people who have raised threats against exhibiting certified films, in the interest of justice; and e) Issue a writ or order or direction in the nature of Mandamus or any other appropriate Writ or order directing the respondents to complete the investigation and trial in such offences in a time bound manner, in the interest of justice; and f) Issue a writ or order or direction in the nature of Mandamus or any other appropriate Writ or order that the bail applications, if any, moved by persons arrested for committing, causing, abetting or inciting acts of violence and destruction with the intention of preventing and disrupting the screening of films certified for public exhibition under the Cinematograph Act 1952 will be allowed only on condition that they deposit the sum equivalent to the loss quantified to have been caused by them, or furnish security for such quantified loss and also, in the interest of justice; and g) Issue a writ or order or direction in the nature of Mandamus or any other appropriate Writ or order that the assets and properties of such arrested persons and also the leaders of protesting groups which incited or abetted violence and destruction, will remain under attachment for the loss quantified to have been caused until its realization, in the interest of justice; and h) Issue a writ in the nature of mandamus, or any other appropriate writ, direction or order directing the respondents to file status reports regarding the implementation of actions taken by them with respect to guidelines formulated by this Hon'ble Court in strictly follow and implement the guidelines formulated by this Hon'ble Court in In Re: Destruction of Public and Private Properties v. Govt. of AP, 2009 5 SCC 212, particularly mentioned in Paragraph 12 and 15 of SCC Report of the said judgment. i) Issue a writ in the nature of mandamus, or any other appropriate writ, direction or order directing the respondents to explore the options of invoking the provisions of Unlawful Activities (Prevention) Act 1967 against the outfits/groups/organizations which make brazen threats on film makers and artists, and indulge in systematic and organized acts of destruction and damage of property so as to achieve their unlawful ends by striking terror in society; j) Please to issue any other writ or direction(s) or Order(s) as the Hon'ble Court may deem fit and proper in view of the facts and circumstances of the case and in the interest of justice."
(3.) The principal relief is to issue directions to the States/Union of India to strictly implement the decision rendered by this Court in In Re: Destruction of Public and Private Properties Vs. State of Andhra Pradesh & Ors., 2009 5 SCC 212 concerning the large-scale destruction of properties in the name of agitations, bandhs, hartals etc. The Court, after taking note of certain suggestions given by the Committees appointed by the Court inter alia recommended amendments to the Prevention of Damage to Public Property Act, 1984 (for short 'the PDPP Act'), Criminal Procedure Code, 1973 and other criminal law statutes; and also set out guidelines to assess damages to property in the absence of a statutory framework. The relevant portion of the judgment is set out hereunder: "4. Two reports have been submitted by the Committees. The matter was heard at length. The recommendations of the Committees headed by Justice K.T. Thomas and Mr. F.S. Nariman have been considered. Certain suggested guidelines have also been submitted by learned Amicus Curiae. 5. The report submitted by Justice K.T. Thomas Committee has made the following recommendations: (i) The PDPP Act must be so amended as to incorporate a rebuttable presumption (after the prosecution established the two facets) that the accused is guilty of the offence. (ii) The PDPP Act to contain provision to make the leaders of the organisation, which calls the direct action, guilty of abetment of the offence. (iii) The PDPP Act to contain a provision for rebuttable presumption. (iv) Enable the police officers to arrange videography of the activities damaging public property. 6. The recommendations of the Justice Thomas Committee have been made on the basis of the following conclusions after taking into consideration the materials. In respect of (i) 7. "According to this Committee the prosecution should be required to prove, first that public property has been damaged in a direct action called by an organization and that the accused also participated in such direct action. From that stage the burden can be shifted to the accused to prove his innocence. Hence we are of the view that in situations where prosecution succeeds in proving that public property has been damaged in direct actions in which accused also participated, the court should be given the power to draw a presumption that the accused is guilty of destroying public property and that it is open to the accused to rebut such presumption. The PDPP Act may be amended to contain provisions to that effect." In respect of (ii) 8. "Next we considered how far the leaders of the organizations can also be caught and brought to trial, when public property is damaged in the direct actions called at the behest of such organizations. Destruction of public property has become so rampant during such direct actions called by organizations. In almost all such cases the top leaders of such organisations who really instigate such direct actions will keep themselves in the background and only the ordinary or common members or grass root level followers of the organisation would directly participate in such direct actions and they alone would be vulnerable to prosecution proceedings. In many such cases, the leaders would really be the main offenders being the abettors of the crime. If they are not caught in the dragnet and allowed to be immune from prosecution proceedings, such direct actions would continue unabated, if not further escalated, and will remain a constant or recurring affair. Of course, it is normally difficult to prove abetment of the offence with the help of direct evidence. This flaw can be remedied to a great extent by making an additional provision in PDPP Act to the effect that specified categories of leaders of the organization which make the call for direct actions resulting in damage to public property, shall be deemed to be guilty of abetment of the offence. At the same time, no innocent person, in spite of his being a leader of the organization shall be made to suffer for the actions done by others. This requires the inclusion of a safeguard to protect such innocent leaders." In respect of (iii) 9. "After considering various aspects to this question we decided to recommend that prosecutions should be required to prove (i) that those accused were the leaders or office bearers of the organisation which called out the direct actions and (ii) that public property has been damaged in or during or in the aftermath of such direct actions. At that stage of trial it should be open to the court to draw a presumption against such persons who are arraigned in the case that they have abetted the commission of offence. However, the accused in such case shall not be liable to conviction if he proves that (i) he was in no way connected with the action called by his political party or that (ii) he has taken all reasonable measures to prevent causing damage to public property in the direct action called by his organisation." In respect of (iv) 10. "The Committee considered other means of adducing evidence for averting unmerited acquittals in trials involving offences under PDPP Act. We felt that one of the areas to be tapped is evidence through videography in addition to contemporaneous material that may be available through the media, such as electronic media. With the amendments brought in the Evidence Act, through Act 21 of 2000 permitting evidence collected through electronic devices as admissible in evidence, we wish to recommend the following: i) If the officer in charge of a police station or other law enforcing agency is of opinion that any direct action, either declared or undeclared has the potential of causing destruction or damage to public property, he shall avail himself of the services of video operators. For this purpose each police station shall be empowered to maintain a panel of local video operators who could be made available at short notices. (ii) The police officer who has the responsibility to act on the information that a direct action is imminent and if he has reason to apprehend that such direct action has the potential of causing destruction of public property, he shall immediately avail himself of the services of the videographer to accompany him or any other police officer deputed by him to the site or any other place wherefrom video shooting can conveniently be arranged concentrating on the person/ persons indulging in any acts of violence or other acts causing destruction or damage to any property. iii) No sooner than the direct action subsides, the police officer concerned shall authenticate the video by producing the videographer before the Sub Divisional or Executive Magistrate who shall record his statement regarding what he did. The original tapes or CD or other material capable of displaying the recorded evidence shall be produced before the said Magistrate. It is open to the Magistrate to entrust such CD/material to the custody of the police officer or any other person to be produced in court at the appropriate stage or as and when called for. The Committee felt that offenders arrested for damaging public property shall be subjected to a still more stringent provision for securing bail. The discretion of the court in granting bail to such persons should be restricted to cases where the court feels that there are reasonable grounds to presume that he is not guilty of the offence. This is in tune with Section 437 of the Code of Criminal Procedure, 1973 and certain other modern Criminal Law statutes. So we recommend that Section 5 may be amended for carrying out the above restriction. Thus we are of the view that discretion to reduce the minimum sentence on condition of recording special reasons need not be diluted. But, instead of "reasons" the court should record "special reasons" to reduce the minimum sentence prescribed. However, we felt that apart from the penalty of imprisonment the court should be empowered to impose a fine which is equivalent to the market value of the property damaged on the day of the incident. In default of payment of fine, the offender shall undergo imprisonment for a further period which shall be sufficient enough to deter him from opting in favour of the alternative imprisonment." 11. The recommendations according to us are wholesome and need to be accepted. 12. To effectuate the modalities for preventive action and adding teeth to enquiry/investigation following guidelines are to be observed: As soon as there is a demonstration organized: (I) The organizer shall meet the police to review and revise the route to be taken and to lay down conditions for a peaceful march or protest; (II)All weapons, including knives, lathis and the like shall be prohibited; (III) An undertaking is to be provided by the organizers to ensure a peaceful march with marshals at each relevant junction; (IV) The police and State Government shall ensure videograph of such protests to the maximum extent possible; (V) The person in charge to supervise the demonstration shall be the SP (if the situation is confined to the district) and the highest police officer in the State, where the situation stretches beyond one district; (VI) In the event that demonstrations turn violent, the officer-in-charge shall ensure that the events are videographed through private operators and also request such further information from the media and others on the incidents in question. (VII) The police shall immediately inform the State Government with reports on the events, including damage, if any, caused . (VIII) The State Government shall prepare a report on the police reports and other information that may be available to it and shall file a petition including its report in the High Court or Supreme Court as the case may be for the Court in question to take suo motu action. 13. So far as the Committee headed by Mr. F.S. Nariman is concerned the recommendations and the views are essentially as follows: "There is a connection between tort and crime - the purpose of the criminal law is to protect the public interest and punish wrongdoers, the purpose of tort-law is to vindicate the rights of the individual and compensate the victim for loss, injury or damage suffered by him: however - the distinction in purpose between criminal law and the law of tort is not entirely crystal-clear, and it has been developed from case-to-case. The availability of exemplary damages in certain torts (for instance) suggest an overtly punitive function - but one thing is clear: tort and criminal law have always shared a deterrent function in relation to wrongdoing. The entire history of the development of the tort law shows a continuous tendency, which is naturally not uniform in all common law countries, to recognise as worthy of legal protection, interests which were previously not protected at all or were infrequently protected and it is unlikely that this tendency has ceased or is going to cease in future. There are dicta both ancient and modern that categories of tort are not closed and that novelty of a claim is no defence. But generally, the judicial process leading to recognition of new tort situations is slow and concealed for judges are cautious in making innovations and they seldom proclaim their creative role. Normally, a new principle is judicially accepted to accommodate new ideas of social welfare or public policy only after they have gained their recognition in the society for example in extra judicial writings and even then the decision accepting the new principle is supported mainly by expansion or restriction of existing principles which 'gradually receive a new content and at last a new form'. Where persons, whether jointly or otherwise, are part of a protest which turns violent, results in damage to private or public property, the persons who have caused the damage, or were part of the protest or who have organized will be deemed to be strictly liable for the damage so caused, which may be assessed by the ordinary courts or by any special procedure created to enforce the right. This Committee is of the view that it is in the spirit of the observation in M.C. Mehta v. Union of India that this Court needs to lay down principles on which liability could be fastened and damages assessed in cases in which due to behaviour of mobs and riotous groups public and private property is vandalized and loss of life and injury is occasioned to innocent persons. These are clearly "unusual situations", which have arisen and likely to arise in future and need to be provided for in the larger interest of justice. It is on the principles set out above that (it is suggested) that the Hon'ble Court should frame guidelines and venture to evolve new principles (of liability) to meet situations that have already arisen in the past and are likely to arise again in future, so that speedy remedies become available to persons affected by loss of life, injury and loss of properties, public or private, as a result of riots and civil commotions. Damages in the law of torts in India include: (a) damages based on the concept of restituto in interregnum to enable total recompense; and (b) exemplary damages" 14. The basic principles as suggested by Nariman Committee are as follows which we find to be appropriate: (1) The basic principle for measure of damages in torts (i.e. wrongs) in property is that there should be 'restituto in interregnum' which conveys the idea of "making whole". (2) Where any injury to property is to be compensated by damages, in settling the sum of money to be given for reparation by way of damages the Court should as nearly as possible get at that sum of money which will put the party who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation. (3) In this branch of the law, the principle of restitution in interregnum has been described as the "dominant" rule of law. Subsidiary rules can only be justified if they give effect to that rule. (3.1) In actions in tort where damages are at large i.e. not limited to the pecuniary loss that can be specifically proved, the Court may also take into account the defendant's motives, conduct and manner of committing the tort, and where these have aggravated the plaintiff's damage e.g. by injuring his proper feelings of dignity, safety and pride - aggravated damages may be awarded. Aggravated damages are designed to compensate the plaintiff for his wounded feelings-they must be distinguished from exemplary damages which are punitive in nature and which (under English Law) may be awarded in a limited category of cases. (3.2) "Exemplary damages" has been a controversial topic for many years. Such damages are not compensatory but are awarded to punish the defendant and to deter him and others from similar behaviour in the future. The law in England (as restated in Rookes v. Barnard affirmed in Cassell v. Broome) is that such damages are not generally allowed. In England they can only be awarded in three classes of cases (i) where there is oppressive, arbitrary or unconstitutional action by servants of the Government; (ii) where the defendants conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the claimant; and (iii) where such damages are provided by statute. (3.3) In the decision in Kuddus v. Chief Constable of Leicestershire Constabulary, the most recent judgment of the House of Lords, the Law Lords did not say that in the future the award of exemplary damages should be restricted only in the cases mentioned in Rookes v. Barnard (as affirmed in Cassell v. Broome). Lord Nicholls in his speech at page 211 stated that: "68. ...the essence of the conduct constituting the Court's discretionary jurisdiction to award exemplary damages is conduct which was such as to be an outrageous disregard of the claimant's rights. (3.4) " In this committee's view, the principle that Courts in India are not limited in the law of torts merely to what English Courts say or do, is attracted to the present situation. This Committee is of the view that this Hon'ble Court should evolve a principle of liability - punitive in nature - on account of vandalism and rioting leading to damages/destruction of property public and private. Damages must also be such as would deter people from similar behaviour in the future: after all this is already the policy of the law as stated in the Prevention of Damage to Property Act, 1984, and is foreshadowed in the order of this Hon'ble Court dated 18-06-2007 making the present reference. (3.5) In a Winfield and Jolowicz on Tort 17th Edn. (at pp. 948-49) the authors set out the future of exemplary damages by quoting from the decision in Kuddus v. Chief Constable of Leicestershire Constabulary where two Law Lords Lord Nicholls and Lord Hutton expressed the view that such damages might have a valuable role to play in dealing with outrageous behaviour. The authors point out that the boundaries between the civil and criminal law are not rigid or immutable and the criminal process alone is not an adequate mechanism to deter willful wrong-doing. The acceptability of the principle of compensation with punishment appears to have been confirmed by the Privy Council (in Gleaner Co Ltd. Vs. Abrahams AC at 54) where it was felicitously said that: (AC P.647, para 54) "54. oil and vinegar may not mix in solution but they combine to make an acceptable salad dressing." (3.6) The authors go on to say that exemplary damages certainly enjoy a continuing vitality in other common law jurisdictions, which, by and large, have rejected the various shackles imposed on them in England and extended them to other situations: thus punitive damages was held to be available in Australia "in cases of "outrageous" acts of negligence. The Law Commission of Australia has also concluded - after a fairly evenly balanced consultation-that exemplary damages should be retained where the defendant "had deliberately and outrageously disregarded the plaintiffs rights." 15. In the absence of legislation the following guidelines are to be adopted to assess damages: (I) Wherever a mass destruction to property takes place due to protests or thereof, the High Court may issue suo motu action and set up a machinery to investigate the damage caused and to award compensation related thereto. (II) Where there is more than one state involved, such action may be taken by the Supreme Court. (III) In each case, the High Court or Supreme Court, as the case may be, appoint a sitting or retired High Court judge or a sitting or retired District judge as a Claims Commissioner to estimate the damages and investigate liability. (IV) An Assessor may be appointed to assist the Claims Commissioner. (V) The Claims Commissioner and the Assessor may seek instructions from the High Court or Supreme Court as the case may be, to summon the existing video or other recordings from private and public sources to pinpoint the damage and establish nexus with the perpetrators of the damage. (VI) The principles of absolute liability shall apply once the nexus with the event that precipitated the damage is established. (VII) The liability will be borne by the actual perpetrators of the crime as well as organisers of the event giving rise to the liability - to be shared, as finally determined by the High Court or Supreme Court as the case may be. (VIII) Exemplary damages may be awarded to an extent not greater than twice the amount of the damages liable to be paid. (IX) Damages shall be assessed for: (a) damages to public property; (b) damages to private property; (c) damages causing injury or death to a person or persons; (d) Cost of the actions by the authorities and police to take preventive and other actions. (X) The Claims Commissioner will make a report to the High Court or Supreme Court which will determine the liability after hearing the parties. 16. The recommendations of Justice K.T. Thomas Committee and Mr F.S. Nariman Committee above which have the approval of this Court shall immediately become operative. They shall be operative as guidelines. xxx 28. The present case is one in which guidelines are necessary: (i) to the police to enforce statutory duties, and (ii) to create a special purpose vehicle in respect of damages for riot cases. This issue was examined by the Nariman Committee which considered: " where (in such cases) there is destruction/damage to properties and loss of lives or injuries to persons (i) the true measures of such damages, (ii) the modalities for imposition of such damages, and " (p. 2 of the Report). 29. These guidelines shall cease to be operative as and when appropriate legislation consistent with the guidelines indicated above are put in place and/or any fast track mechanism is created by the statute(s)." After having noted the recommendations made by the Committees appointed by the Court, in paragraphs 16, 28 and 29 the Court declared that the stated recommendations had the approval of the Court and shall immediately become operative.;