New Delhi: After Uttar Pradesh and Karnataka, Haryana has become the third Bharatiya Janata Party-ruled state to seek recovery of damages to property during a disturbance. The move, coming at the time of the ongoing farmers’ agitation against the three Central laws, has evoked strong criticism.
UP had first passed an ordinance and then enacted a law to seek the damages, and Karnataka invoked a 2009 Supreme Court order that permits a high court to constitute machinery to investigate losses and award compensation in riots. The Haryana government is taking the UP route, and introduced the Haryana Recovery of Damages to Property during Disturbance to Public Order Bill, 2021 on March 16.
On Thursday, Congress spokesperson Randeep Surjewala criticised the decision, saying it violates the fundamental rights of citizens.
`Law violates freedom of expression’
“The Bill itself is a law imposing a permanent ban on every person and group who speak, think, protest and state the flaws and mistakes of the government in the State. Not only does this law violate the fundamental rights enshrined in Article 19 of the Constitution of freedom of expression, but it also reflects the mentality and frustration of the BJP-JJP government that is scared of the people of Haryana,” Surjewala said.
Surjewala also accused the Manohar Lal Khattar government in the state of resorting to unconstitutional acts. He charged that “the BJP-JJP government, which has been burning in the fire of vengeance from the peasants, labourers and the toiling masses, has also left behind the oppression of the British. Blinded by revenge and completely losing political balance, the Khattar government is now forcibly passing non-constitutional acts in the legislative assembly.”
Questioning if the government wanted to completely eliminate the freedom of speech and protest, he accused it of becoming cruel, overlooking the sacrifices of 250 farmers who have died in the protests and targeting the property of those who feed the country.
Surjewala also took a dig at the Central and state governments for themselves damaging public property to halt the advance of the protesting farmers towards Delhi. “Is it not a crime to damage the national property, to dig the national highway in Haryana to prevent the farmers from going to Delhi peacefully? Are chief minister Manohar Lal Khattar and deputy chief minister Dushyant Chautala not guilty of this crime?” he asked.
`Identify those who dug up roads, make them pay too’
Earlier, following the introduction of the Bill, leader of opposition and former chief minister Bhupinder Singh Hooda too had questioned its timing and said it was “introduced in haste”. He had demanded that first those people should be identified “who were responsible for digging up roads to stop farmers from reaching Delhi’s borders”. Another senior Congress member, R.S. Kadian, had termed the Bill an attempt to “rub salt on farmers’ wounds”.
However, Haryana home minister Anil Vij, who had introduced the Bill, had termed these statements as attempts to “mislead people”. Stating that his government was not against peaceful protests, he asked if the Congress leaders supported “rioters, destruction of public and private properties, burning of buses and, if not, why were they opposing the Bill then”.
The statement of reason and objects for the Haryana Bill says:
“Whereas the general public has taken a serious note of various past and recent instances of mob violence where there was a large scale destruction, burning-looting of public and private properties, injury or loss of lives during disturbances to public order by an assembly, lawful or unlawful, including riots and violent disorder etc and therefore, the State as well as the private individuals, trusts etc had to suffer huge losses in terms of property and costs. The State Government is supposed to take all preventive, remedial measures so that such incidents are not repeated and public order is maintained. In order to prevent recurrence of such circumstances, there should be a legal framework to cause deterrence in the minds of the perpetrators of violence as also the organisers, instigators etc.”
The Bill describes “damages” as “loss, injury or deterioration caused by any act or omission by any person to property of central government or state government or another person during disturbance to public order”. It further describes disturbance as one “caused by an assembly, lawful or unlawful and includes a riot, revolt or violent disorder”.
Collector would be empowered to order attachment of property, bank account
It also provides for setting up of a Claims Tribunal to assess the damage, determine liability and award compensation. Also, it states that the collector would have the power to issue an order of attachment of property or bank account of any person against whom an award has been passed by the Claims Tribunal to pay compensation.
As for the proceedings following any violence, it states that on damage to any property, the police station in-charge of the area will register an FIR and forward its copy to the district magistrate, who would issue a notification inviting claims for damages. Any owner of damaged property or their legal representative will be able to file the compensation claim. On the basis of the applications, the district magistrate will prepare a report and submit it to the state government.
The Tribunal, the Bills states, would also decide the proportion of the compensation recoverable from various persons involved in “leading, organising, planning, exhorting, instigating, participating or committing the incident leading to damages”. An appeal against the award would be allowed before the Punjab and Haryana high court only upon depositing 20% compensation with the district magistrate.
UP was first state to bring similar ordinance after anti-CAA protests
Uttar Pradesh was the first state to enact a similar law in 2020. First it brought an ordinance in March 2013. However, the Allahabad high court had termed UP’s recovery of damages ordinance arbitrary. Hearing a public interest litigation against the new law, the court stated that the “ordinance is arbitrary in its very nature”.
The court also held that the “intention of the ordinance is only to frustrate and overrule the law laid down by” a bench of the high court which had earlier asked the state to remove hoardings erected by it displaying the personal information of those accused of violence during the anti-Citizenship Amendment Act protests.
The PIL filed by Shashank Tripathi had urged suspension of or stay against the ordinance. A petitioner in another PIL in the case, lawyer Ashma Izzat, had also argued that the ordinance was “arbitrary and unconstitutional”, saying, “it allows for proceedings to be instituted against persons against whom no prima facie evidence exists either of commission of a crime or of destruction of property.”
The Haryana law bears sharp similarity to that brought in by the Yogi Adityanath government in UP.
‘A ruse to divert attention from police excesses’
Legal luminaries believe that such laws are usually an excuse to divert attention from police excesses. Writing for The Wire, senior advocate of the Supreme Court Rajeev Dhavan had in December 2019, also stated that “the state of UP has certainly not obeyed the diktat of the constitution not to impose unreasonable restrictions on the right `to assemble peacefully without arms’ even in the interests of public order or the sovereignty and integrity of India. Having violated this most fundamental of constitutional duties, UP now wants to clamp down further on the repressed and exonerate the repressors.”
Dhavan had also cautioned that the process for awarding compensation for damages cannot be arbitrary or aimed at targeting the innocent. “Nobody can claim the right to destroy private or public property. It is a crime and a tort for which damages can be awarded by a court of law. But the method and due process by which this is to be done cannot be arbitrary or target the innocent,” he wrote.
Why are only BJP-ruled states are bringing such laws?
While many states have experienced violence and riots, only those ruled by the BJP have been moving towards using special provisions in the name of providing compensation for damages.
In August 2020, the Karnataka government led by B.S. Yediyurappa also decided to made rioters pay for damages following violence in Bengaluru during anti-CAA protests. However, in place of passing an ordinance, it announced that it would be invoking a 2009 Supreme Court order that permits a high court to constitute machinery to investigate losses and award compensation.
The 2009 order had framed guidelines for a high court to probe damages in riots and award compensation while acknowledging the absence of state legislations to do the same.
Legal experts had then too accused the state BJP government of being selective in its approach.
However, legal experts feel that the government was being selective in the Bengaluru riots case, while ignoring other such incidents of violence. Former advocate general of Karnataka, Ashok Haranahalli, was then quoted as saying: “Recovering the cost of damage will be difficult without a proper mechanism in place. Appropriate remedy is to set up a recovery tribunal.”
He also cautioned that the Supreme Court had only issued broad guidelines and many aspects like identifying offenders, executing a plan to recover losses, and penalties for non-compliance remained unclear.