Road to Prison
S S Mahil
Following the footsteps
of its senior partner, Punjab
government led by Prakash Singh Badal is moving in the same direction. Punjab government brought a draconian law, named "Prevention of Damage to the Public and Private Property Act, 2014" in the last session of Assembly, which was summarily passed without any opposition by Congress party, the only opposition party in the assembly. Now it is lying on the table of the Governor.
Punjab government passed two such draconian acts in the year 2010 too. One was the Act with the same heading and the second one was "Punjab Special Forces Act, 2010". There was widespread opposition to these two black laws then. CPI (M-L) New Democracy had held a massive demonstration against these black laws. A joint front of mass organizations was formed despite the opposition from certain political parties, like CRPC(ML) and CPM, Punjab. Left wing parties of ruling classes and their mass organizations remained aloof from this struggle. This front organized protests in many forms, including a massive rally at Ludhiana and a blockade of Chandigarh for one full day. Thus Punjab government was forced to withdraw these two acts. Now the Badal government left "Punjab Special Forces Act" and certain portion of the "Prevention of Damage to the Public and Private Property Act" which was branded prima facie untenable in the court of law and got the Property Act passed. People are once again fighting against it.
There are certain changes in this Act from the same Act of 2010. First thing is that in the earlier act there was a provision that any organization seeking to organize a protest, demonstration, dharna or procession will have to take prior permission from the Police Commissioner or Deputy Commissioner in which organizers will have to disclose the purpose, number of participants and slogans which shall not be against the government, and permission depended upon the sweet will of the concerned authority. Now this provision has been dropped. But it has been made more stringent in some other aspects.
Section 2 of this Act defines the forms of protests which will come under this Act. Previously demonstration, dharna, procession were the forms of struggle which were covered under the Act. But in the present Act not only above mentioned forms of protests but peaceful agitation, strike, hartal, bandh, march, rail blockade and road blockade are also included. In Punjab a certain organization of unemployed educated youth is adopting a novel method of protest. They climb up the water supply tanks and refuse to come down till their demands are met. One girl, an ETT teacher, died in this and at many places they had to face police brutality. Though this form is not specifically mentioned in this Act but this also can be conveniently brought under it. These new inclusions are very dangerous on two counts—one is agitation and the other is strike. The word 'agitation' has a very broad meaning. Any article written, any press statement or any leaflet or pamphlet issued on the issue concerned can be said to be an agitating material. Not only that, even an indoor meeting, discussion on the matter concerned can be called agitation. Any activity on a particular issue of struggle can be termed agitation. Secondly, inclusion of strike in the purview of this act has very dangerous implications. This form of struggle is the weapon of industrial workers, which they have attained after long drawn struggles for decades. Workers work inside the factory, especially in the organized sector, which is the private property of factory owner and on the machinery provided by owner, so a worker can easily be trapped saying he has damaged the property. Thus this law effectively takes away the right of the workers, without even touching the labour laws and effecting any change in those laws. Rail and road blockade, which was a very effective method of struggle, is also affected by this law.
Section 2 of the Act also deals with the organizations which are covered by this Act. This includes not only the political parties but mass organizations, class organizations, social organizations and religious organizations also. Its fangs are not limited to the political parties and other organizations but affect individuals and groups of individuals. Another dangerous aspect is that not only the persons who are rounded up or are present at the scene of occurrence are to be trapped but the leaders and members of the organization which organizes the protest can be implicated.
Another dangerous aspect of this Act is sub section C of section 2 of the Act, which defines the term "organizer" of protest. This states that not only the unit of the Organization which gives a call for protest but the whole organization shall be held responsible and all its members and all its leaders shall be booked under this law. Person causing damage will not be the only person to be booked but whole assembly will be punished, this is an effort to make the fighting toiling people leaderless. Persons who organize, incite, advise, guide, assist, support and "conspire" for an act are defined as organizers. With such wider scope of the term "organizer", persons providing place/hall, tents and sound, supplying water and providing vehicles for the transportation of the participants can be implicated. Practically, with this definition of organizers any protest will be virtually made impossible. Apart from it with this definition any person who supports such struggle, gives a statement in support, collects fund for struggle, provides langar for the striking workers, writes an article justifying the cause of struggle shall be liable for punishment under this Act. This Act effectively debars any struggle from getting any outside solidarity support.
Police videographed protests earlier too, but it was without any legal sanction but this Act not only provides legal sanction to such videography rather makes it legally mandatory, sub-section 2 of the section 3 deals with this. Such video-graphy shall be used as evidence in the court of law. Earlier also this was admissible in the court but it was not taken as a primary evidence, this has to be substantiated by some other independent evidence. This was so because photographs or videos are evidence which can easily be tampered with, can be doctored, images can be super imposed. With the advancement of technique this has acquired dangerous proportions. But according to this Act video cannot only be admissible as primary evidence but the accused can be convicted solely on the basis of this evidence. This provision of this Act is violative of the Indian Evidence Act as it is in contravention of the Central Act.
Property in this Act is not properly defined. In the absence of a clear cut definition, the term property can be stretched to any length. For example, if in a crowded demonstration the cycle of a person suffers some damage, it can easily be termed as "damage to the private property". Similarly if in a candle or mashal march any govt. hoarding catches fire it can be termed as damage to govt. property caused by fire.
This Act treats agitators as more dangerous than hardened criminals hence it has very stringent provisions of punishment for the so-called violators of this Act. In case "damage" to some private or government property occurs, then person can be awarded imprisonment for three years and fine up to Rs one lakh and in case "damage" is caused by fire or explosion then the punishment can be imprisonment for five years and fine up to Rs three lakhs. Not only punishment is stringent but the offence under the Act is non-bailable. When the accused applies for bail then the court will have to hear the prosecution. In case prosecution delays its deposition bail will be delayed automatically. Thus the accused can be kept behind bars for a fairly longer period even without rejecting his bail.
Those who come onto the streets are generally poor people and those leading them are also generally economically challenged, so govt. through this Act wants to economically hit them, an effort to economically devastate the activists and the leaders of the people's movement. The Act has provision of heavy fines i.e. one lakh in case of "damage" caused ordinarily and rupees three lakhs in case of "damage" with fire or explosions. Apart from this, the Act provides for compensation of the so-called damage. The amount of the compensation is to be determined by a "competent authority", but the Act does not explain who can the authority be? What will be the basis of its competence? How to judge the competence of the so-called authority? The Act is completely silent on all these questions. In the absence of clarity on all these issues govt. can assume overriding and unlimited powers on the matter. In the absence of clear cut guidelines, Government can appoint any person or persons as "competent authority"; he may or may not be technically equipped to handle the job. For example if in a factory, workers go on strike and the management manages to damage some machine or any other property and get the workers booked under this Act, government may appoint the factory owner or one of his men as "competent authority" and get the result he wishes. Secondly what will be the procedure to assess the damage? What will be the basis for assessment of the damage? What tools are to be employed to make such an assessment? There is nothing in this Act; there is no detailed explanation. In this situation the so-called competent authority is given discretionary powers—power without any checks to make the assessment of the damage. So in the case of strike in a factory, the owner is in a position to invoke this Act, get the person of his choice appointed as the "competent authority" and get an amount fixed as compensation according to his sweet will. Thus this Act gives license to the owner to economically ruin the workers and their leaders.
In the ordinary cases, if someone wants to recover some amount from some one, the normal course is that he should approach the court, contend his case there and if court decrees his case then he can recover the money. But this Act places the recovery of fine and compensation under the Revenue Act. When British colonialists conquered India, their main object was to collect revenue, so they enacted this Revenue Act and the same Revenue Act is in vogue in India till date. Under this Revenue Act, there is no need to go to the court. The person from whom recovery is to be made can directly be arrested and can be put behind bars; not only that his property can be attached and recovery be made right away. This is aimed at economically ruining the struggling people and their leadership.
Normally, a police officer not below the rank of sub-inspector can take cognizance of the case but under this Act this right is given to the head constable. He can arrest anybody under this Act. So the pompous freedoms given in Article 19 of the Constitution are put at the mercy of a head constable; these freedoms are a chained dog whose chain is in the hands of a head constable.
Vol. 47, No. 30, Feb 1 - 7, 2015