Damage to Public Property During Protests: Criminal Liability, Recovery and Evidentiary Standards.

Abstract

Public protests are a constitutionally protected form of dissent. However, when protests turn violent and result in destruction of public property, the State faces a dual challenge: safeguarding the right to protest and protecting public assets funded by taxpayers. In India, this issue has gained judicial and legislative attention through statutes like the Prevention of Damage to Public Property Act, 1984, provisions of the Bharatiya Nyaya Sanhita, 2023, and landmark Supreme Court judgments such as _In Re: Destruction of Public and Private Properties_ (2009) and _Union of India v. Tarsem Singh_ (2019).

 

This article examines the legal framework governing damage to public property during protests. It analyzes three core aspects: 1. Criminal liability of protesters, organizers and abettors; 2. Mechanisms for recovery of damages from those responsible; and 3. Evidentiary standards required to establish culpability in court. The article argues that while punitive deterrence is necessary, recovery mechanisms and clear evidentiary rules are equally important to prevent arbitrary action and ensure accountability. It concludes with suggestions for balancing Article 19(1)(a) rights with Article 51A duties and with a FAQ section for practical clarity.

 

Keywords: Public Property, Protest, Criminal Liability, Damages, Prevention of Damage to Public Property Act 1984, BNS, Evidence Act, Strict Liability, Vicarious Liability

1. Introduction

Public property includes roads, buses, railway stations, government buildings, traffic signals, statues and any asset owned by the State or local bodies. During mass protests, hartals, and bandhs, damage to such property has become recurring. The cost is borne by the public exchequer, disrupts essential services, and erodes public trust.

 

The Constitution guarantees freedom of speech and assembly under Article 19(1)(a) and 19(1)(b), but these rights are subject to reasonable restrictions under Article 19(2) and 19(3) in the interest of public order. Further, Article 51A(i) casts a fundamental duty on citizens to safeguard public property.

 

Thus, the law seeks to balance two competing interests: the right to protest and the duty to protect public assets.

 

2. Legal Framework in India

 

2.1 The Prevention of Damage to Public Property Act, 1984 [PDPP Act] This is the primary special statute.

Section 3: Whoever commits mischief to any public property shall be punished with imprisonment up to 5 years, or fine, or both.

Section 2(b): “Public property” is defined widely to include any property owned by Central Govt, State Govt, local authority, corporation, and even property used for public utility.

Key features:

1. Cognizable and non-bailable offence.

2. Covers damage by fire, explosive substances, or any other means.

3. Intent to cause damage is essential, but negligence in context of riots is also covered.

 

2.2 Bharatiya Nyaya Sanhita, 2023 [BNS]

Replaces IPC. Relevant sections:

1. Section 324(4) BNS: Mischief causing damage to public property. Punishment up to 5 years.

2. Section 189-191 BNS: Unlawful assembly, rioting. If damage occurs during rioting, every member can be liable.

3. Section 61 BNS: Criminal conspiracy.

4. Section 190 BNS: Every member of unlawful assembly is guilty of offence committed in prosecution of common object.

 

2.3 Other Statutes

1. Railways Act, 1989: Specific penalties for damage to railway property during protests.

2. Motor Vehicles Act, 1988: For damage to government buses.

3. State-specific PDPP Acts: Many states have their own versions with stricter provisions.

 

3. Criminal Liability: Who is Liable?

3.1 Direct Perpetrators

Persons who physically damage property are liable under Section 3 PDPP Act and Section 324 BNS. Mens rea is required, but in case of riots, it can be inferred from conduct.

3.2 Organizers and Leaders

The Supreme Court in _In Re: Destruction of Public and Private Properties_ (2009) 5 SCC 212 held that organizers of protests cannot escape liability. If they call for bandh and violence ensues, they may be liable for abetment under Section 108 BNS and conspiracy under Section 61 BNS.

3.3 Vicarious Liability and Unlawful Assembly

Section 190 BNS codifies the principle that if an offence is committed by any member of an unlawful assembly in prosecution of the common object, every member is liable. This is crucial in protest cases where individual identification is difficult.

3.4 Political Parties and Associations

Courts have directed that political parties calling for bandhs may be asked to compensate. In _Bharat Kumar v. State of Kerala_ (1997), the SC declared bandhs illegal. In _Kodungallur Film Society v. State of Kerala_ (2018), the Kerala HC ordered political parties to pay for damage.

4. Recovery of Damages

4.1 Judicially Mandated Recovery Mechanism

The Supreme Court in _In Re: Destruction of Public and Private Properties_ (2009) laid down guidelines:

1. Claims Commissioner: State governments must appoint Claims Commissioners to assess damage and award compensation.

2. Video recording: Police must video record protests to identify perpetrators.

3. Liability of organizers: Organizers can be made to deposit amount to cover potential damages.

 

4.2 Civil Recovery

State can file civil suits for damages under tort law. The principle is “polluter pays”. Government can also recover from property of accused after conviction.

 

4.3 Attachment of Property

Under CrPC/BNSS, property of accused can be attached during trial if there is apprehension of disposal to avoid compensation.

 

4.4 Insurance and Public Funds

For public transport corporations, insurance claims are filed. But deductibles and premium hikes ultimately burden the public.

 

5. Evidentiary Standards

Proving individual culpability in a mob is the biggest challenge. Courts have relaxed and adapted standards:

 

5.1 Direct Evidence

CCTV footage, body-worn cameras, and mobile videos are now primary. _Anvar P.V. v. P.K. Basheer_ (2014) requires certificate under Section 65B of Evidence Act for electronic evidence.

5.2 Circumstantial Evidence

Presence in unlawful assembly, slogans, social media posts calling for violence can be used to establish common object.

5.3 Presumptions

Under Section 114 Evidence Act, court may presume that a person present at scene with common object intended the result. However, this cannot be arbitrary and must be backed by other evidence.

5.4 Burden of Proof

Prosecution must prove beyond reasonable doubt. But once membership of unlawful assembly is proved, burden shifts to accused to show they did not share common object.

5.5 Identification in Mob

Difficulties led courts to accept video identification, drone footage, and forensic matching. Delays in FIR and poor investigation often lead to acquittals.

 

6. Balancing Rights and Duties

The Supreme Court has repeatedly said: “Democracy and dissent go hand in hand, but vandalism has no place.”

Protesters must:

1. Give prior notice to police.

2. Choose venues that do not disrupt essential services.

3. Appoint volunteers to prevent violence.  State must:

1. Provide alternative protest sites.

2. Use minimal force.

3. Ensure speedy investigation and fair trial.

 

7. Judicial Trends and Recommendations

1. Strict Enforcement: PDPP Act is underutilized. Police should register FIRs promptly.

2. Technology: Mandatory videography of all protests above a certain size.

3. Fast-track Courts: For damage cases to ensure deterrence.

4. Public Awareness: Citizens must know that damaging public property is not “victimless”.

5. Compensation Fund: Create a fund from which immediate repairs are done, later recovered from liable persons.

 

8. Conclusion

Damage to public property during protests cannot be justified as part of democratic expression. The legal framework in India provides for both criminal punishment and civil recovery. However, implementation gaps remain. The 2009 Supreme Court guidelines, if implemented fully with technology and dedicated Claims Commissioners, can create real deterrence. At the same time, the State must respect the right to protest and not use PDPP Act to stifle dissent. The balance lies in accountability without authoritarianism.

 

References

1. The Prevention of Damage to Public Property Act, 1984.

2. Bharatiya Nyaya Sanhita, 2023.

3. Bharatiya Sakshya Adhiniyam, 2023.

4. _In Re: Destruction of Public and Private Properties_, (2009) 5 SCC 212.

5. _Bharat Kumar K.P. v. State of Kerala_, (1997) 2 SCC 201.

6. _Union of India v. Tarsem Singh_, (2019) 9 SCC 304.

7. _Anvar P.V. v. P.K. Basheer_, (2014) 10 SCC 473.

8. _Kodungallur Film Society v. Union of India_, 2018 SCC OnLine Ker 2801.

9. M.P. Jain, _Indian Constitutional Law_, 8th Ed.

10. Ratanlal & Dhirajlal, _Law of Crimes_, 28th Ed.

 

FAQs

Q1. Is damaging public property during a protest a bailable offence?

No. Under Section 3 of the PDPP Act, 1984 the offence is cognizable and non-bailable. You can be arrested without warrant.

Q2. Can I be held liable if I was just part of the crowd but did not break anything?

Yes. Under Section 190 BNS, if you were part of an unlawful assembly and damage was done in furtherance of common object, every member is vicariously liable.

 

Q3. Who pays for the damage if the culprits are not identified?

As per the 2009 Supreme Court guidelines, States must appoint Claims Commissioners. Often, the State bears initial cost and tries to recover later. Organizers of the protest can also be directed to deposit security.

 

Q4. Can WhatsApp messages and protest videos be used as evidence?

Yes. Electronic evidence is admissible under Section 63 of Bharatiya Sakshya Adhiniyam, 2023, provided a Section 65B certificate is produced regarding the device and authenticity.

Q5. Is there a difference between “hartal” and “bandh” in law?

Yes. The Supreme Court in _Bharat Kumar_ (1997) held that “bandh” which involves forcefully preventing others is illegal. A voluntary “hartal” may be permissible, but if it leads to property damage, liability still attaches.

Q6. What if police themselves damage property?

Police officers can be held liable departmentally and criminally. Citizens can also file complaints and claim compensation. Public servants do not get immunity for mischief.

Q7. Can minors be prosecuted under PDPP Act?

Yes, but they will be dealt with under the Juvenile Justice Act, 2015. Parents/guardians may also be asked to pay compensation.

Q8. How can protest organizers protect themselves legally?

Take prior permission, cooperate with police, appoint marshals, do videography, and publicly condemn violence. This helps show lack of common object to cause damage.