Supreme Court of India
IN RE: DESTRUCTION OF PUBLIC & PRIVATE PROPERTIESversusSTATE OF A.P. AND ORS.
- Citation
- 2009 INSC 535
- Decided
- 16 April 2009
- Disposal
- Disposed off
- Bench
- ARIJIT PASAYAT
Holding
The Court held that the committees' recommendations are approved as immediate, operative guidelines under Article 32, to be applied until appropriate legislation is enacted.
Summary
The Supreme Court, acting suo motu under Article 32, examined the widespread destruction of public and private property during agitations, bandhs and hartals. It appointed two expert committees—one chaired by Justice K.T. Thomas and the other by senior lawyer F.S. Nariman—to recommend measures for prevention, investigation and compensation. The Court accepted the committees' recommendations, directing that they become immediate, binding guidelines for police duties, damage assessment, videographic evidence, and media self‑regulation, pending legislative action. It prescribed a framework for appointing claims commissioners, applying absolute liability, and awarding exemplary damages up to twice the assessed loss. The guidelines will cease when Parliament enacts consistent legislation or a fast‑track statutory mechanism. Consequently, the writ petitions were disposed of after the guidelines were promulgated.
Issues considered
- The Supreme Court's power under Article 32 to lay down guidelines in the absence of specific legislation for preventing destruction of property.
- Whether the recommendations of the Thomas and Nariman committees can be made immediately operative as judicial guidelines.
- The appropriate procedural and substantive measures for police, damage assessment, and media regulation in riot‑related property destruction.
- The extent to which the guidelines remain in force pending enactment of suitable statutes.
- The necessity and scope of amending the Prevention of Damage to Public Property Act, 1984.
Legislation cited
Subjects
destruction of propertysuo motu jurisdictionArticle 32guidelinespublic agitationpolice dutiesdamage assessmentexemplary damagesabsolute liabilitytort lawmedia self‑regulationPrevention of Damage to Public Property Actconstitutional law
Judgment
•
[2009] 6 S.C.R. 439
IN RE: DESTRUCTION OF PUBLIC & PRIVATE A
PROPERTIES
STATE OF A.P. AND ORS. - RESPONDENTS
(Writ Petition (CRL.) NO. 77 of 2007)
APRIL 16, 2009
B
[DR. ARIJIT PASAYAT, LOKESHWAR SINGH PANTA
AND P. SATHASIVAM, JJ.]
Constitution of India, 1950 - Art. 32 - Power of Court to C
lay down guidelines - Destruction of property in name of
agitations, bandhs and harta.ls - Suo motu proceedings
initiated by this Court - Two Committees appointed; one
headed by a retired Judge of this Court Justice K. T. Thomas
and the other headed by Mr. F.S.Nariman, a senior lawyer- D .
Held: Recommendations made by the Committees· having
approval of this Court to become immediately operative as
guidelines - Guidelines i) to police to enforce statutory duties
and ii) to create a special purpose vehicle in respect of
damages for riot cases - The guidelines shall cease to be E
operative as and when appropriate legislation consistent with
the guidelines are put in place and/or any fast track
mechanism is created by Statute(s) - Prevention of Damage
to Public Property Act, 1984 - Police Act, 1861.
Taking a serious note of various instances of large F
scale destruction of public and private properties in the
name of agitations, bandhs, hartals and the like, suo motu
proceedings were initiated by this Court.
Two Committees were appointed in this regard, one G
headed by a retired Judge of this Court, Justice K.T.
Thomas and the other headed by F.S. Nariman, a senior
member of the legal profession.
439 H
440 SUPREME COURT REPORTS [2009] 6 S.C.R.
A Disposing of the Writ Petitions on consideration of ,
the reports submitted by the two Committees, the Court
HELD:1.1. The report submitted by Justice K.T.
Thomas Committee has made the following
recommendations:(i) The Prevention of Damage to Public
8
Property Act, 1984 (POPP 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 POPP Act to contain -1
provision to make the leaders of the organization; which
C calls the direct action, guilty of abetment of the offence;
(iii) The POPP Act to contain a provision for rebuttable
presumption and (iv) Enable the police officers to arrange
videography of the activities damaging public property.
The recommendations are wholesome and need to be
D accepted. [Paras 4 and 6] [446-B-D; 450-C]
1.2. To effectuate the modalities for preventive action
and adding teeth to enquiry/investigation following
·guidelines are to be observed: As soo.n as there is a
E 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; (Ill) An undertaking is to be provided by the
F 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
G 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
H
IN RE: DESTRUCTION OF PUBLIC & PRIVATE PROPERTIES. 441
others on the incidents in question. (VII) The police shall A
immediately inform the State Government with reports on
the events, including damage, if any, caused by the
police; (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 B
in the High Court or Supreme Court as the case may be
for the Court in question to take suo motu action. [Para
-t 7] [450-D-H; 451-A-D]
2.1. The basic principles as suggested by Nariman
Committee are as follows which are found to be
c
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 D
~ 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 E
compensation or reparation. (3) In this branch of the law,
the principle of restitution in interregnum has been
described as the..!'domiriant" rule of law. Subsidiary rules
~
can only be justified if they give effect to that rule. In
actions in tort where damages are at large i.e. not limited F
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 plaintitrs damage e.g.
:
by injuring his proper feelings of dignity, safety and pride G
~
. - aggravated damages may be awarded. Aggravated
damages are designed to compensate the plaintiff for
wounded feelings-they must be distinguished from
exemplary damages· which are punitive in nature and
H
442 SUPREME COURT REPORTS [2009] 6 S.C.R.
A which (under English Law) may be awarded in a limited >
category of cases. [Para 9] [453-D-H; 454-A-B]
2.2. In the absence of legislation the following
guidelines are to be adopted to assess damages:
Wherever a mass destruction to property takes place due
B
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; Where there is more than one state involved, such +
action may be taken by the Supreme Court;· In each case,
c 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; An
Assessor may be appointed to assist the Claims
D Commissioner; 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
E the perpetrators of the damage; The principles of ....
absolute liability shall apply once the nexus with the event
that precipitated the damage is established; The liability
will be borne by the actual perpetrators of the crime as
well as organisers of the event giving rise to the liability
F - to be shared, as finally determined by the High Court
. >
or Supreme Court as the case may be; Exemplary
damages may be awarded to an extent not greater than
twice the amount of the damages liable to be paid;
Damages shall be assessed for (a) damages to public ...
G property; (b) damages to private property; (c) damages
,.
causing injury or death to a person or persons; (d) Cost
of the actions by the authoritfes and police to take '
preventive and other actions; The Claims Commissioner
will make a report to the High Court or Supreme Court
H
(
'
• IN RE: DESTRUCTION OF PUBLIC & PRIVATE PROPERTIES 443
•
which will determine the liability after hearing the parties. A
[Para 10] [456-B-H; 457-A-D]
3. The recommendations of Justice K.T. Thomas
Committee and Mr. F.S. Nariman Committee which have
the approval of this Court shall immediately became
8
operative. They shall be operative as guidelines. 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. These guidelines shall cease to be operative as
and when appropriate legislation consistent with the C
guidelines indicated are put in place and/or any fast track
mechanism is created by Statute(s). [Paras 11, 18 and 20]
[457-E; 470-C-D, G]
Union of India v. Association for Democratic Reforms D
(2002) 5 SCC 294; Lakshmi Kant Pandey v. Union of India,
(1984) 2 SCC 244; Vishaka v. State of Rajasthan, (1997) 6
SCC 241;. Vineet Narain v. Union of India, (1998) 1 SCC 226;
State of W.B. v. Sampat Lal, (1985) 1 SCC 317; K.
Veeraswami (1991) 3 SCC 655; Union Carbide Corporation E
v. Union of India, (1991) 4 SCC 584; Delhi Judicial Service
Assn. v. State of Gujarat, (1991) 4 SCC 406; Delhi
Development Authority v. Skipper Construction Co. (P) Ltd.,
(1996) 4 SCC 622; Dinesh Trivedi,. M.P. v. Union of India,
(1997) 4 SCC 306; Common Cause v. Union of India, AIR F
1996 SC 929; Supreme Court Advocates-on-Record
Association v. Union of India (1993) 4 SCC 441; Comptroller
and Auditor General of India v. K S. Jagannathan AIR 1987
SC 537 and D.K. Basu v. State of West Bengal (1997) 1 SCC
416, referred to.
G
Case Law Reference:
(2002) s sec 294 referred to Para 12
(1984) 2 sec 244 referred to Para 13
H
444 SUPREME COURT REPORTS [2009] 6 S.C.R.
.
)
A (1997) s sec 241 referred to Para 13
'"'-·.
(1998) 1 sec 226 referred to Para 13
(1985) 1 sec 317 referred to Para 13
(1991) 3 sec 655 referred to Para 13
B
(1991) 4 sec 584 referred to Para 13
(1991) 4 sec 406 referred to Para 13 1-
(1996) 4 sec 622 referred to Para 13
c
(1997) 4 sec 306 referred to Para 13
AIR 1996 SC 929 referred to Para 13
(1993) 4 sec 441 referred to Para 13
D AIR 1987 SC 537 referred to Para 13
-
i-
(1997) 1 sec 416 referred to Para 13
CRIMINAL APPELLATE JURISDICTION : Writ Petition
E
(Criminal) No. 77 of 2007. •
Under Article 32 of The Constitution of India.
WITH
. W.P. (Crl,fNo. 73/2007
F G.E. Vahanvati (SGI), Dr. Manish Singhvi AAG,
(Rajasthan), R. Shunmugasundaram, Rajiv Dhawan (A.C.),
Ashok K. Mahajan, Riku Sharma (for Corporate Law Group),
S.R. Hedge, Rohen Singh, Nishant Mishra, Amit Kr. Chawla,
H. Wahi, Pinky Behra, K. Enatoli Serna, Somanath Padhan,
G Mamta Tushar K. Nobin Singh, Krishan Kumar, Subhash
Kaushik, Sadhna Sandhu, D.S. Mehra, Aruneshwar Gupta, Shiv
Pujan Singh, Avijit Bhattacharjee, S. Kundu, Gopal Singh,
Manish Kumar, Naresh K. Sharma, Kuldip Singh, R.K. Pandey,
Anil Shrivastava, Ritu Raj, K.N. Madhu Soodhanan, R. Sathish,
H Aruna Mathur. V. Dubey (for Arputham, Aruna & Co.}, Ranjan
IN RE: DESTRUCTION OF PUBLIC & PRIVATE PROPERTIES 445
Mukherjee, V.G. Pragasam, S.J. Aristotle, Praburama A
Subramanian, Milind Kumar, D. Bharathi Reddy, Khwairakpam
Nobin Singh, Vibha Datta Makhija, Ravindrc;i Keshavrao
Adsure, S. Thananjayan, Ajay Pal, S.R. Hedge, G.Prakash, A.
Subhashini, SWA Qadri, Anil Katiyar, D.S. Mehra, Vanita, Shail
Kr. Dwivedi, Gunnam Venkateswara Rao, Vandana Mishra, B
A.K. Jha and M.K. Jha for the appearing parties.
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Taking a serious note of·
various instances where there was large scale destruction of C
public and private properties in the name of agitations, bandhs,
hartals and the like, suo motu proceedings were initiated by a
Bench of this Court on 5.6.2007. Dr. Rajiv Dhawan, Senior
counsel of this Court agreed to act as Amicus Curiae. After
perusing various reports filed, two Committees were appointed; D
one headed by a retired Judge of this Court Justice K.T.
Thomas. The other members of this Committee were Mr. K.
Parasaran, Senior Member of the legal profession, Dr. R.K.
Raghvan, Ex-Director of CBI, and Mr. G.E. Vahanavati, the
Solicitor General of India and an officer not below the rank of E
Additional Secretary of Ministry of Home Affairs and the
Secretary of Department of Law and Justice, Government of
India. The Other Committee was headed by Mr. F.S. Nariman,
t a Senior Member of the Legal Profession. The other members
of the Committee were the Editor-in-Chief of the Indian Express, F
· the Times of India and Dainik Jagaran, Mr. Pranay Roy of NDTV
and an officer not below the rank of Additional Secretary of
Ministry of Home Affairs, Information and Broadcasting and
Secretary, Department of Law and Justice, Government of
India, Mr. G.E. Vahanavati, Solicitor General and learned G
Amicus Curiae.
2. 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. H
446 SUPREME COURT REPORTS [2009] 6 S.C.R.
A 3. Certain suggested guidelines have also been submitted
•
by learned Amicus Curiae.
4. The report submitted by Justice K.T. Thomas Committee
has made the following recommendations:
B (i) The POPP Act must be so amended as to
incorporate a rebuttable presumption (after the
prosecution established the two facets) that the i
accused is guilty of the offence.
•
c (ii) The POPP Act to contain provision to make the
leaders of the organization, which calls the direct
action, guilty of abetment of the offence.
(iii) The POPP Act to contain a provision for rebuttable
presumption.
0
(iv) Enable the police officers to arrange videography
of the activities damaging public property.
5. The recommendations have been made on the basis
E of the following conclusions after taking into consideration the
materials.
In respect of (i)
"According to this Committee the prosecution should
F 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
G 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
H accused to rebut such presumption. The POPP Act may
IN RE: DESTRUCTION OF PUBLIC & PRIVATE PROPERTIES 447
[DR. ARIJIT PASAYAT, J.]
be amended to contain provisions to that effect. A
In respect of (ii)
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 B
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 iflstigate
such direct actions will keep themselves in the background C
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 o
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 E
of the offence with the-help of direct evidence. This flaw
can be remedied to a great extent by making an additional
provision in POPP Act to the effect that specified
t
categories of leaders of the organization which make the
call for direct actions resulting in damage to public property, F
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
G.
safeguard to protect such innocent leaders."
~In respect of (iii)
"After considering various aspects to this question
we decided to recommend that prosecutions should be
H
448 SUPREME COURT REPORTS [2009] 6 S.C.R. ,
~
A 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 <luring 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
B
arraigned in the case that they have abetted the
commission of offence. However, the accused in such
i
case shall not be liable to conviction if he proves that (i)
he was in no w~y connected with the action called by his
political party or that (ii) he has taken all reasonable
c measures to prevent causing damage to public property
in the direct action called by his organisation."
In respect of (iv)
D "The Committee considered other means of
adducing evidence for averting unmerited acquittals in "
trials involving offences under POPP Act. We felt that one
of the areas to be tapped is evidence through videography
in addition to contemporaneous material that may be
E 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:
F (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
G 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.
H (ii) The police officer who has the responsibility to
IN RE: DESTRUCTION OF PUBLIC & PRIVATE PROPERTIES 449
[DR. ARIJIT PASAYAT, J.]
;
act on the information that a direct action is A
imminent aQd 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 B
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 ot·hef acts causing
destruction or damage to any property. c
(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 D
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 E
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 F
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 G
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 H
450 SUPREME COURT REPORTS [2009] 6 S.C.R.
l
A 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
B
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."
c
6. The recommendations according to us are wholesome
and need to be accepted.
7. To effectuate the modalities for preventive action and
D 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
E the route to be taken and to lay down conditions for a
peaceful march or protest;
(ll)All weapons, including knives, lathis and the like shall
be prohibited; .,
F (Ill) 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
G 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
H
IN RE: DESTRUCTION OF PUBLIC & PRIVATE PROPERTIES 451
[DR. ARIJIT PASAYAT, J.]
<'
1
situation stretches beyond one district; A
(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
B
incidents in question.
(VII) The police shall immediately inform the State
, ~ Government with reports on the events, including damage,
if any, caused by the police;
" c
(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.
D
.'
___,, 8. 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 E
_._ 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 F
law of tort is not entirely crystal-clear, and it has been
de~eloped 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
G
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 H
452 SUPREME COURT REPOR"rs (2009] 6 S.C.R.
...,
A 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
B 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
i
of social welfare or public policy only after they have
gained their recognition in the society for example in extra
c 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".
D Where persons, whether jointly or otherwise, are part
of a protest which turns violent, results in damage to private y ...•
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
E 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/ndia (1987
(1) SCC 395) that this Court needs to lay down principles .
F
on which liability could be fastened and damages
assessed in cases in which due to behaviour of mebs 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
G 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
H and venture to evolve new principles (of liability) to meet
IN RE: DESTRUCTION OF PUBLIC & PRIVATE PROPERTIES 453
[DR. ARIJIT PASAYAT, J.]
-.i situations that have already arisen in the past and are likely A
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.
B
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" c
9. 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 D
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 E
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 compen~ation or reparation.
(3) In this branch of the law, the principle of restitution in F
interregnum has been described as the "dominant" rule of
law. Subsidiary rules can only be justified if they give effect
to that rule.
In actions in tort where damages are at large i.e. not G
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 plaintiffs
damage e.g. by injuring his proper feelings of dignity, H
454 SUPREME COURT REPORTS [2009] 6 S.C.R.
safety and pride - aggravated damages may be awarded .. I'
A
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
B
in a limited category of cases.
"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
c 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
D 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.
E
In the decision in Kuddus v. Chief Constable of
Leicestershire: (2001) UKHL 29 - 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
F
Rookes v. Barnard [1964] 1 All ER 367 (as affirmed
in Cassel/ v. Broome [1972] 1 All ER 801.) Lord Nicholls
in his speech at page 211 stated that:
G "... 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. "
In this committee's view, the principle that Courts in India
H are not limited in the law of torts merely to what English
IN RE: DESTRUCTION OF PUBLIC & PRIVATE PROPERTIES. 455
[DR. ARIJIT PASAYAT, J.]
i
Courts say or do, is attracted to the present situation. This A
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 B
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 m.aking the present reference.
In a Winfield and Jolowicz (on Tort) Seventeenth Edition
c
(at pages 948-949) the authors set out the future of
exemplary damages by quoting from the decision in
Kuddeus v. CC Leicestershie (supra) where two Law
Lords Lord Nicholls and Lord Hutton expressed the view
that such damages might have a valuable role to play in D
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 E
punishment appears to have been confirmed by the Privy
Council (in The Cleaner Co Ltd. v. Abrahams (2004) a
AC 628 at 54) where it was felicitously said that "oil and
,;· vinegar may not mix in solution but they combine to make
an acceptable salad dressing." The authors go on to say F
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 G
cases of "outrageous" acts of negligence.
The Law Commission of Australia has also
concluded - after a fairly evenly balanced consultation-that
exemplary damages shol!ld be retained where the
H
456 SUPREME COURT REPORTS [2009] 6 S.C.R.
A defendant "had deliberately and outrageously disregarded
the plaintiffs rights."
10. In the absence of legislation the following guidelines
are to be adopted to assess damages:
B (I) Wherever a mass destruction to property takes place
due to protests or thereofl. the High Court may issue suo
motu action and set up a machinery to investigate the
damage caused and to award compensation related
thereto.
c
(II) Where there is more than one state involved, such
action may be taken by the Supreme Court.
(Ill) In each case, the High Court or Supreme Court, as the
case may be, appoint a sitting or retired High Court judge
0 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
E 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
F
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
G 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
H High Court or Supreme Court as the case may be.
IN RE: DESTRUCTION OF PUBLIC & PRIVATE PROPERTIES 457
[DR. ARIJIT PASAYAT. J.]
1
(VIII) Exemplary damages may be awarded to an extent A
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
(b) damages to private property;
t
(c) damages causing injury or death to a person or
persons;
c
(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 D
liability afteio hearing the parties.
"
11. The recommendations of Justice K.T. Thomas
Committee and Mr. F.S. Nariman Committees above which
have the approval of this Court shall immediately became
E
operative. They shall be operative as guidelines.
12. The power of this Court also extends to laying down
guidelines. In Union of India v. Association for Democratic
• Reforms (2002) 5 SCC 294, this Court observed:
F
" ... It is not possible for this court to give any directions for
amending the Act or statutory Rules. It is for Parliament to
amend the Act and the Rules. It is also established law that
no direction can be given, which would be contrary to the
Act and the Rules. However, it is equally settled that in
G
case when the Act or Rules are silent on a particular
subject and the authority implementing the same has
constitutional or statutory power to implement it, the court
can necessarily issue directions or orders on the said
subject to fill the vacuum or void till the suitable law is
H
458 SUPREME COURT REPORTS [2009] 6 S.C.R.
A enacted." (pp.307)
13. This court has issued directions in large number of
cases to meet urgent situations e.g.
* Lakshmi Kant Pandey v. Union of India, (1984) 2
B sec 244
* Vishaka v. State of Rajasthan, (1997) 6 SCC 241
* Vineet Narain v. Union of India, (1998) 1 SCC 226
c
* State of W.B. v. Sampat Lal, (1985) 1 SCC 317
* K. Veeraswami (1991) 3 SCC 655
* Union Carbide Corporation v. Union of India,
D
(1991) 4 sec 584
•
* Delhi Judicial Service Assn. v. State of Gujarat,
(1991) 4 sec 406
E * Delhi Development Authority v. Skipper
Construction Co. (P) Ltd., (1996) 4 SCC 622;
* Dinesh Trivedi, M.P. v. Union of India, (1997) 4
sec 306
F Common Cause v. Union of fndia, AIR 1996 SC 929
* Supreme Court Advocates-on-Record Association
v. Union of India; (1993) 4 SCC 441
* Positive Mandamus Cases
G
(i) Mandamus to enforce the law
The situation in which a positive mandamus to do a
particular act in a particular way, may be broadly classified
H in the following manner. First are the broad mandamus
IN RE: DESTRUCTION OF PUBLIC & PRIVATE PROPERTIES. 459
[DR ARIJIT PASAYAT, J.)
cases where this court has held that the court may issue A
a positive mandamus to enforce the law. Thus in Vineet
Narain's case (supra) detailed orders were passed for the
investigation of the Hawala transaction cases. It is laid
down that positive directions can be issued where there
is a power coupled with a duty. The situations under which B
this can happen are numerous. In Commissioner of Police
v. Gordhandas Bhanji AIR 1952 SC 16 at pr.27, quoting
from Julius v. Lord Bishop of Oxford, (1880) 5 AC. 214,
where the court said:
"There may be something in the nature of the thing C
empowered to be done, something in the object for
which it is to be done, something in the title of the
person or persons for whose benefit the power is
to be exercised, which may couple the power with
a duty, and make the duty of the person in whom D
the power is reposed, to exercise that power when
called upon to do so. "
In Comptro//er and Auditor General of India v. K S.
Jagannathan (AIR 1987 SC 537) the court also explored E
the need to issue a positive mandamus where a power
was coupled with a duty.
"18. The first contention urged by learned counsel
for the appellants was that the Division Bench of the
High Court could not issue a writ of mandamus to
F
direct a public authority to exercise its discretion in
a particular manner. There is a basic fallacy
underlying this submission-both with respect to the
order of the Division Bench and the purpose and
scope of the writ of mandamus. The High Court had G
not issued a writ of mandamus. A writ of
mandamus was the relief prayed for by the
respondents in their writ petition. What the Division
Bench did was to issue directions to the appellants
in the exercise of its jurisdiction under Article 226 H
460 SUPREME COURT REPORTS [2009] 6 S.C.R.
A of the Constitution. Under Articie 226 of the
..
Constitution, every High Court haG the power to
issue to any person or authority, including in
appropriate cases, any government, throughout the
territories in relation to which it exercises
B jurisdiction, directions, orders, or writs including
writs in the nature of habeas corpus, mandamus,
quo warranto and certiorari or any of them, for the
enforcement of the Fundamental Rights conferred
by Part. 111 of the Constitution or for any other
c purpose. In Dwarkanath v. /TO [(1965 3 SCR 536)]
this Court pointed out that Article 226 is designedly
couched in a wide language in order not to confine
the power conferred by it only to the power to issue
prerogative writs as understood in England, such
wide language being used to enable the High
D
Courts "to reach injustice wherever it is found" and
"to mould !re reliefs to me~t the peculiar ard
complicated requirements of this country.'' In
Hochtief Gammon v. State of Orissa [1976] 1 SCR
667 this Court held that the powers of the courts in
E England as regards the control whic'1 the Judiciary
has over the Executive indicate the minimum limit
to which the courts in this courtry would be
prepared to go in considcririg the v::ilidity of orders
passed by the government or its officers.
"19 Even had the Division Bench issued a writ of
mandamus giving the directions which it did, if
circumstances of the case justified such directions, the
High Court would have been entitled in law to do so for
G even the courts in England could have issued a writ of
mandamus giving such directions . .A.lrnost a r1undred and ,.
thirty years ago, Martin, B., in Mayor of Rochester v.
Regina said:
"But, were there no authority upon the subject, we
H
'
IN RE: DESTRUCTION OF PUBLIC & PRIVATE PROPERTIES· 461
[DR ARIJIT PASAYAT, J.]
should be prepared upon principle to affirm the A
judgment of the Court of Queen's Bench. That court
has power, by the rerogative writ of mandamus, to
amend all errors which tend to the oppression of the
subject or other misgovernment, and ought to he
used when the law has provided no specific B
remedy, and justice and good government require
that there ought to be one for the execution of the
f. common law or the provisions of a statute: Comyn's
Digest, Mandamus (A) .... Instead _of being astute to
discover reasons for not applying this great c
constitutional remedy for error and misgovernment,
we think it our duty to be vigilant to apply it in every
case to which, by any reasonable construction, it
can be made applicable. "
The principle enunciated in the above case was approved D
and followed in King v. Revising Barrister for the Borough
of Hanley. In Hochtief Gammon case this Court pointed
out (at p. 675 of Reports: SCC p. 656) that the powers of
the courts in relation to the orders of the government or an
officer of the government who has been conferred any E
power under any statute, which apparently confer on them
absolute discretionary powers, are not confined to cases
where such power is exercised or refused to be exercised
on irrelevant considerations or on erroneous ground or
·•
mala fide, and in such a case a party would be entitled to F
move the High Court for a writ of mandamus. In Padfield
v. Minister of Agriculture, Fisheries and Food, the House
of Lords held that where Parliament had conferred a
discretion on the Minister of Agriculture, Fisheries and
Food, to appoint a committee of investigation so that it G
.... could be used to promote the policy and objects of the
Agricultural Marketing Act, 1958, which were to be
determined by the construction of the Act which was a
matter of law for the court and though there might be
reasons which would justify the Minister in refusing to refer H
462 SUPREME COURT REPORTS [2009] 6 S.C.f<.
A a complaint to a committee of investigation. the Minister's
discretion was not uniirnited and if it appeared that the
effect of his refusal to appoint a committee of investigation
was to frustrate the policy of the Act, the court was entitled
to interfere by an order of mandamus. In Halsbury's Laws
B of England, 4th Edn., vol. I, para 89, it is stated that the
purpose of an order of mandamus:
"is to remedy defect of justice; and accordingly it
will issue, to the end that justice may be done, in
all cases where there is a specific legal right and ·
c no specific legal remedy for enforcing that right; and
it may issue in cases where, although there is an
alternative legal remedy, yet that mode of redress
is less convenient, beneficial and effectual."
D 20. There is thus no doubt that the High Courts in India
exercising their jurisdiction under Article 226 have the
power to issue a writ of mandamus or a writ in the nature
of mandamus or to pass orders and give necessary
directions where the government or a public authority has
E failed to exercise or has wrongly exercised the discretion
conferred upon it by a statute or a rule or a policy decision
of the government or has exercis4'!d such discretion mala
fide or on irrelevant considerations or by ignoring tlte
relevant considerations and materials or in such a manner
F as to frustrate the object of conferring such discretion or
the policy for implementing which such discretion has been
conferred. In all such cases and in any other fit and proper
case a High Court can, in the exercise of its jurisdiction
under Article 226, issue a writ of mandamus or a writ in
the nature of mandamus or pass orders and give
G
directions to compel the performa:ice in a proper and
lawful manner of the discretion conferred upon the
government or a public authority, and in a proper case, in
order to prevent injustice resulting to the concerned parties,
the court may itself pass an order or give directions which
H
IN RE: DESlRUCl iON OF PUBLIC & PRIVATE PROPERTIES 463
[DR. ARIJIT PASAYAT, J.]
~ the government or the public authority should have passed A
or given had it properly and lawfully exercised its
discretion."
This is especially important in giving directions in respect
of mobilizing:
B
(a) The Prevention of Damage to Public Property
Act (1984)
(b) The Police Act of 1$61 and the duties of the
police under the Criminal Procedure Code c
In D.K. Basu v. State of West Bengal (1997) 1 SCC 416,
directions were given to "Arrest and Detention" in criminal
cases. The Court opined:
"28.Police is, no doubt, under a legal duty and has D
legitimate right to arrest a criminal and to
interrogate him during the investigation of an
offence but it must be remembered that the law
does not permit use of third-degree methods or
torture of accused in custody during interrogation E
and investigation with a view to solve the crime.
End cannot justify the means. The interrogation and
investigation into a crime should be in true sense
purposeful to make the investigation effective. By
torturing a person and using third-degree methods, F
the police would be accomplishing behind the
closed doors what the demands of our legal order
forbid. No society can permit it."
29. How do we check the abuse of police power?
Transparency of action and accouni3bility perhaps are two G
-.; possible safeguards which this Court must insist upon.
Attention is also required to be paid to properly develop
work culture, training and orientation of the police force
consistent with basic human values. Training methodology
H
464 SUPREME COURT REPORTS [2009] 6 S.C.R.
A of the police needs restructuring. The force needs to be •
infused with basic human values and made sensitive to the
constitutional ethos. Efforts must be made to change the
attitude and approach of the police personnel handling
investigations so that they do not sacrifice basic human
B values during interrogation and do not resort to
questionable forms of interrogation. With a view to bring
in transparency, the presence of the counsel of the
arrestee at some point of time during the interrogation may
deter the police from using thirddegree method~ during
c interrogation.
30. Apart from the police, there are several other
governmental authorities also like Directorate of Revenue
Intelligence, Directorate of Enforcement, Coastal Guard,
Central Reserve Police Force (CRPF), Border Security
D Force (BSF), th.e Central Industrial Security Force (CISF),
the State Armed Police, Intelligence Agencies like the
Intelligence Bureau, RAW, Central Bureau of Investigation
'(CBI), CID, Traffic Police, Mounted Police and ITBP, which
have the power to detain a person and to interrogate him
E in connection with the investigation of economic offences,
offences under the Essential Commodities Act, Excise and
Customs Act, Foreign Exchange Regulation Act etc. There
are instances of torture and death in custody of these
authorities as well. In In Re: Death of Sawinder Singh
F Grover, 1995 Supp. (4) SCC 450 (to which Kuldip Singh,
J. was a party) this Court took suo moto notice of the death
of Sawinder Singh Grover during his custody with the
Directorate of Enforcement. After getting an enquiry
conducted by the Additional District Judge, which
G disclosed a prima facie case for investigation and
prosecution, this Court directed the CBI to lodge an FIR \'"
and initiate criminal proceedings against all persons
named in the report of the Additional District judge and
proceed against them. The Union of India/Directorate of
Enforcement was also directed to pay a sum of Rs 2 lakhs
H
IN RE: DESTRUCTION OF PUBLIC & PRIVATE PROPERTIES 465
[DR ARIJIT PASAYAT, J.]
,, to t~1e widow of the deceased by way of ex gratia payment A
at the interim stage. Amendment of the relevant provisions
of law to protect the interest of arrested persons in such
• cases too is a genuine need .
31. There is one other aspect also which needs our B
consideration. We are conscious of the fact that the police
in India have to perform a difficult and delicate task,
,, particularly in view of the deteriorating law and order
situation, communal riots, political turmoil, student unrest,
terrorist activities, ahd among others the increasing
number of underworld and armed gangs and criminals.
c
Many hardcore criminals like extremists, terrorists, drug
peddlers, smugglers who have organised gangs, have
taken strong roots in the society. It is being said in certain
quarters that with more and more liberalisation and
enforcement of fundamental rights, it wo.uld lead to D
difficulties in the detection of crimes committed by such
c:ategories of hardened criminals by soft peddling
interrogation. It is felt in those quarters that if we lay too
much of emphasis on protection of their fundamental rights
and human rights, such criminals may go Scot free without E
exposing any element or iota of criminality with the result,
the crime would go unpunished and in the ultimate analysis
the society would suffer. The concern is genuine and the
problem is real. To deal with such a situation, a balanced
approach is needed to meet the ends of justice. This is F
all the more so, in view of the expectation of the society
that police must deal with the criminals in an efficient and
effective manner and bring to book those who are involved
in the crime. The cure cannot, however, be worst than the
disease itself. G
... Thus the purpose of the guidelines in D.K. Basu was to
effectuate a constitutional right within the framework of a statute.
At paras 33 & 34, it was observed as follows:
"33. There can be no gainsaying that freedom of an H
466 SUPREME COURT REPORTS [2009] 6 S.C.R.
A individual must yield to the security of the State. The right '
of preventive detention of individuals in the interest of
security of the State in various situations prescribed under
different statutes has been upheld by the courts. The right
..
to interrogate the detenus, culprits or arrestees in the
B interest of the nation, must take precedence over an
individual's right fo personal liberty. The Latin maxim salus
populi supremo lex (the safety of the people is the supreme
law) and salus republicae supremo lex (safety of the State
is the supreme law) coexist ar.d are not only important and
c relevant but lie at the heart of the doctrine that the welfare
of an individual must yield to that of the community. The
action of the State, however, must be "right, just and fair".
Using, .any form of torture for extracting any kind of
information would neither be "right nor just nor fair'' and,
therefore, would be impermissible, being offensive to
D
Article 21. Such a crime suspect must be interrogated - .
indeed subjected to sustained and scientific interrogation
- determined in accordance with the provisions of, law. He
cannot, however, be tortured or subjected to third-degree
methods or eliminated with a view to elicit information,
E extract confession or derive knowledge about his
accomplices, weapons etc. His constitutional right cannot
be abridged in the manner permitted by law, though in the
very nature of things there would be qualitative difference
in the method of interrogation of such a person as
F compared to an ordinary criminal. Challenge of terrorism
must be met with innovative ideas and approach. State
terrorism is no answer to combat terrorism. State terrorism
would only provide legitimacy to "terrorism". That would be
bad for the State, the community and above all for the rule
G of law. The State must, therefore, ensure that various
agencies deployed by it for combating terrorism act within
the bounds of law and not become law unto themselves.
That the terrorist has violated human rights of innocent
citizens may render him liable to punishment but it cannot
H justify the violation of his human rights except in the manner
IN RE: DESTRUCTION OF PUBLIC & PRIVATE PROPERTIES 467
[DR. ARIJIT PASAYAT, J.)
>j
permitted by law. Need, therefore, is to develop scientific A
methods of investigation and train the investigators
properly to interrogate to meet the challenge.
34. In addition to the statutory and constitutional
requirements to which we have made a reference, we are B
of the view that it would be useful and effective to structure
appropriate machinery for contemporaneous recording
and notification of all cases of arrest and detention to bring
' in transparency and accountability. It is desirable that the
officer arrestihg a person should prepare a memo of his
arrest at the time of arrest in the presence of at least one
c
witness who may be a member of the family of the arrestee
or a respectable person of the locality from where the
arrest is made. The date and time of arrest shall be
recorded in the memo which must also be countersigned
by the arrestee." D
' 14. On this basis, detention guidelines were issued. In a
"'"
sense, the guidelines in the Vineet Narain case (supra) also
purported to be to enforce the statute - without more, even
though the constitutional right to a corrupt free government under E
Article 21 was involved.
15. There .are also several cases where guidelines may
become necessary in thee absence of a statutory framework.
16. The justification for this was given in Vishaka's case F
(supra) and approved in Vineet Narain's case (supra) at pr. 52:
Vishaka's paras 8.14, 15
"8. Thus, the power of this Court under Article 32 for
G
enforcement of the fundamental rights and the executive
power of the Union have to meet the challenge to protect
the working women from sexual harassment and to make
their fundamental rights meaningful. Governance of the
society by the rule of law mandates this requirement as a
logical concomitant of the constitutional scheme. The H
468 SUPREME COURT REPORTS [2009] 6 S.C.R.
•
A exercise performed by the Court in this matter is with this
common perception shared with the learned Solicitor
General and other members of the Bar who rendered
valuable assistance in the performance of this difficult task
in public interest.
B
xxx
14 .... The international conventions and norms are to be
read into them in the absence of enacted domestic iaw
occupying the field when there is no inconsistency between
c them. It is now an accepted rule of judicial construction that
regard must be had to international conventions and norms
for construing domestic law when there is no inconsistency
between them and there is a void in the domestic law. The
meaning and content of the fundamental rights guaranteed
D in the Constitution of India are of sufficient amplitude to
encompass all the facets of gender equality including ,.
prevention of sexual harassment or abuse. Independence ~
of judiciary forms a part of our constitutional scheme. The
international conventions and norms are to be read into
E them in the absence of enacted domestic law occupying
the field when there is no inconsistency between them. It
is now an accepted rule of judicial construction that regard
must be had to international conventions and norms for
construing domestic law when there is no inconsistency
F between them and there is a void in the domestic law. The
High Court of Australia in Minister for Immigration and
Ethnic Affairs v. Tech 128 ALR 353, has recognised the
concept of legitimate expectation of its observance in the
absence of a contrary legislative provision, even in the
absence of a Bill of Rights in the Constitution of Australia.
G
'r
15. In Nilabati Behera v. State of Orissa, (1993) 2 SCC
746, a provision in the ICCPR was referred to
support the view taken that 'an enforceable right to
compensation is not alien to the concept of
H enforcement of a guaranteed right', as a public law
IN RE: DESTRUCTION OF PUBLIC & PRIVATE PROPERTIES 469
[DR. ARIJIT PASAYAT, J.]
..
remedy under Article 32, distinct from the private A
law remedy in torts. There is no, reason why these
international conventions and norms cannot,
therefore, be used for construing the fundamental
rights expressly guaranteed in the Constitution of
India which embody the basic concept of gender B
equality in all spheres of human activity.
\/ineet Narain Para 52
"As pointed out in Vishaka it is the duty of the executive
to fill the vacuum by executive orders because its field is c
coterminous with that of the legislature, and where there
is inaction even by the executive, for whatever reason, the
judiciary must step in, in exercise of its constitutional
obligations under the aforesaid provisions to provide a
solution till such time as the legislature acts to perform its 0
role by enacting proper legislation to cover the field."
17. Thus, as we have noted, there are a number of cases
in which guidelines have been given
* Lakshmi Kant Pandey v. Union of India, (1984) 2 E
SCC 244 [Guidelines for adoption of minor children
by foreigners were laid down]
i
* Vishaka v. State of Rajasthan, (1997) 6 SCC 241
[Guidelines were laid down to set up a mechanism
F
to address the issue of sexual harassment at the
workplace]
* Vineet Narain v. Union of India, (1998) 1 SCC 226
[Directions were laid down to ensure the
independence of the Vigilance Commission] G
* State of WB. v. Sampat Lal, (1985) 1 SCC 317
* K. Veeraswami (1991) 3 SCC 655
* Union Carbide Corporation v. Union of India, H
470 SUPREME COURT REPORTS [2009] 6 S.C.R.
A (1991) 4 sec 584
* Delhi Judicial Service Assn. v. State of Gujarat,
(1991) 4 sec 406
* Delhi Development Authority v. Skipper
B Construction Co. (P) Ltd., (1996) 4 SCC 622;
* Dinesh Trivedi, M.P. v. Union of India, (1997) 4
sec 306
* Common Cause v. Union of India, AIR 1996 SC
c 929 [Directions were issued for revamping the
system of blood banks in the country)
18. The present case is one in which guidelines are
necessary:
D
(i) to the police to enforce statutory duties
(ii) to create a special purpose vehicle in respect of
damages for riot cases
E 19. 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 -
F (i) the true measures of such damages
(ii) the modalities for imposition of such damages and ... "
(p.2 of the Report)
G 20. 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 Statute(s).
21. So far as the role of media is concerned the Mr. F.S.
H Nariman Committee has suggested certain modalities which
IN RE: DESTRUCTION OF PUBLIC & PRIVATE PROPERTIES 471
[DR. ARIJIT PASAYAT, J.]
are essentially as follows: A
(a) The Trusteeship Principle
- Professional journalists operate as trustees of public and
their mission should be to seek the truth and to report it
with integrity and independence. B
(b) The Self Regulation Principles
- A model of self-regulation should be based upon the
principles of impartiality and objectivity in reporting; c
ensuring neutrality; responsible reporting of sensitive
issues, especially crime, violence, agitations and protests;
sensitivity in reporting women and children and matters
relating to national security; respect for privacy.
(c) Content Regulations D
- In principle, content regulation except under very
exceptional circumstances, is not to be encouraged
beyond vetting of cinema and advertising through the
existing statues. It should be incumbent on the media to E
classify its work through warning systems as in cinema so
that children and those who are challenged adhere to time,
place and manner restraints. The media must also evolve
codes and complaint systems. But prior content control
(while accepting the importance of codes for self restraint)
F
goes to the root of censorship and is unsuited to the role
of media in democracy.
(d) Complaints Principle
- There should be an effective mechanism to address G __
complaints in a fair and just manner.
(e) Balance Principle
- A balance has to be maintained which is censorial on
the basis of the principles of proportionality and least H
472 SUPREME COURT REPORTS [2009] 6 S.C.R.
A invasiveness, but which effectively ensures democratic •
governance and self restraint from news publications that
the other point of view is properly accepted and
accommodated.
22. It is felt that the appropriate methods have to be
B
devised norms of self regulation rather than external regulation
in a respectable and effective way both for the broadcasters
as well as the industry. It has been stated that the steps
constitute a welcome move and should be explored further. The ).
proposed norms read as follows:
c
"The NBA believes that media that is meant to expose the
lapses in government and in public life cannot be obviously
be regulated by government, else it would lack credibility.
It is a fundamental paradigm of freedom of speech that
D media must be free from governmental control in the matter
of "content" and that censorship and free speech are
sworn enemies. It therefore falls upon the journalistic +
profession to evolve institutional checks and safeguards,
specific to the electronic media, that can define the path .
E that would conform to the highest standards of rectitude
and journalistic ethics and guide the media in the discharge
of its solemn Constitutional duty. There are models of
governance evolved in other countries which have seen
evolution of the electronic m.edia, including the news
media, much before it developed in India. The remarkable
F
feature of all these models is "self-governance", and a
·monitoring by a "jury of peers ".
23. The Committee has recommended the following
suggestions:
G
(i) India has a strong, competitive print and electronic
media ...
(ii) Given the exigencies of competition, there is a degree
of sensationalism, which is itself not harmful so long as it
H
IN RE: DESTRUCTION OF PUBLIC & PRIVATE PROPERTIES 473
[DR. ARIJIT PASAYAT, J.]
preserves the essential role of the media viz: to report news A
as it occurs - and eschew comment or criticism. There are
differing views as to whether the media (particularly the
electronic media) has exercised its right and privilege
responsibly. But generalisations should be avoided. The
important thing is that the electronic (and print) media has B
expressed (unanimously) its wish to act responsibly.
The media has largely responsible and more
importantly, it wishes to act responsibly.
(iii) Regulation of the media is not an end in itself; and C
allocative regulation is necessary because the 'air waves'
are public property and cannot technically be free for all
but have to be distributed in a fair m~rnner. However,
allocative regulation is different from regulation per se. All
regulation has to be within the framework of the D
constitutional provision.
However, a fair interpretation of the constitutional
dispensation is to recognize that the principle of
proportionality is built into the concept of reasonableness E
whereby any restrictions on the media follow the least
invasive approach .. While emphasizing the need for media
responsibility, such an approach would strike the correct
balance between free speech and the independence of the
nieciia.
F
(iv) Although the print media has been pla~ed under the
supervision of the Press Council, there is need for
choosing effective measures of supervision - supervision
not control.
G
(v) As far as amendmehts mooted or proposed to the
Press Council Act, 1978 this Committee would support
such amendments as they do not violate Article 19(1) (a)
- which is a preferred freedom.
(vi) Apart from the Press Council Act, 1978, there is a need H
474 SUPREME COURT REPORTS [2009] 6 S.C.R.
A for newspapers and journals to set up their own
independent mechanism.
(vii) The pre censorship model used for cinema under the
Cinematography Act, 1952 or the supervisory model for
advertisements is not at all appropriate, and should not be
B
extended to live print or broadcasting media.
(viii) This Committee wholly endorses the need for the
formation of )
c (a) principles of responsible broadcasting
(b) institutional arrangements of self regulation
But the Committee emphasised the need not to drift from
self regulation to some statutory structure which may prove
D to be oppressive and full of litigative potential.
(ix) The Committee approved of the NBA model as a
process that can be built upon both at the broadcasting
service provider level as well as the industry level and
E recommend that the same be incorporated as guidelines
issued by this Court under Act 142 of the Constitution of
India - as was done in Vishaka's case.
24. The suggestions are extremely importaot and they
constitute sufficient guidelines which need to be adopted. But
F leave it to the appropriate authorities to take effective steps for
their implementation. At this juncture we are not inclined to give
any positive directions.
25. The writ petitions are disposed of. We express our
G appreciation for the members of both the Committees and the
Chairman of each Committee Justice K.T. Thomas and F.S.
Nariman who are to be complimented for the pains taken by
them to make recommendations which will go a long way to
meet the challenges posed.
H B.B.B. Writ Petition disposed of.
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