When Attorney General Underlined The Non-Political Nature Of His Office
Attorney General K.K.Venugopal on Friday (10.08.2018) surprised the Supreme Court by expressing concern over widespread acts of vandalism by vigilante groups across the country, and the inaction of the law and order machinery to stem the tide. He left no one in doubt that he was saying so in his capacity as the Attorney General for (rather than of) India, as envisaged under Article 76 of the constitution, which enables him to maintain the independence of his office and advice, although he represents the Centre in most cases before the Supreme Court.
His remarks were spontaneous, as the bench headed by Chief Justice of India Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud was hearing a public interest litigation filed by the Kodungallur Film Society, Kerala, with a limited prayer for directions to the authorities to take effective measures to prevent the destruction of public and private properties in mass protests and demonstrations, and to fix liability and recover compensation for damages from those whose agitations turned violent.
AG’s independent role
One could imagine that had it been any other AG, he would have simply defended the Centre saying it is the responsibility of state governments to maintain law and order, as it is a state subject. He would also have argued that it is for the state governments to fix responsibility on officials and take action against them, if they chose to be complicit or negligent in their duties to stem violence and act against vandals who take law into their hands.
By sharing the petitioner’s concerns on the issue proactively, the AG not only underlined the non-political nature of his office, but enhanced its stature by going beyond the immediate prayer of the petitioner, and suggesting that the court could make the superintendent of police of the district concerned responsible for any inaction against those who threaten or cause violent acts under the garb of vigilantism.
While Venugopal’s veiled criticism of the Centre and state governments during the hearing is not comparable to the public criticism of the Centre in matters pertaining to judicial administration and appointment to judicial offices by the first Attorney General, Motilal Setalvad, it cannot be denied that the latter might have inspired the former.
Venugopal assumed office as the AG last July after his predecessor, Mukul Rohatgi, abruptly quit office within three years, expressing his inclination to resume his private practice. Since then, his sage advice has helped both the Centre and the court avert difficult moments. When four senior judges of the Supreme Court held a historic press conference on January 12, making public their grievances against CJI Dipak Misra, it was the AG who advised the CJI not to hold an immediate press conference himself to reveal his credentials, as it would only aggravate the crisis rather than restore normalcy in the court’s functioning.
When the Centre lost important cases in the Supreme Court, Venugopal was gracious enough to praise the court for its contribution to the jurisprudence, as in the landmark Puttaswamy case which upheld right to privacy as a fundamental right. Recently, when the Centre’s proposal to set up a social media hub led to concerns of surveillance state, and a public interest litigation challenging it in the Supreme Court, Venugopal nipped it in the bud by announcing its withdrawal in the court, so that the case could be disposed of without causing the Centre further embarrassment.
Kodungallur Film Society’s petition
The Kodungallur Film Society filed its present petition in the Supreme Court in the wake of violent agitations against the release of the film Padmavat. Specifically, it sought directions to make persons indulging in acts of destruction of public and private properties in their protest against the release and exhibition of the film liable for the damage caused. It also sought the attachment of assets and properties of the members and leaders of the group, who commit and incite to commit such acts of destruction, till the realisation of the losses caused. Third, it also sought denial of bail applications of arrested persons till they deposit the amount of losses suffered, or on furnishing a security for the amount.
“Permitting such outfits to prevent the exhibition of the film through unconstitutional methods will tantamount to giving supremacy to hecklers veto,” the court was told. The petition brought to the notice of the court the recurring trend of fringe groups and outfits taking the law into their own hands to prevent the exhibition of films and oother artistic expressionson the ground that their cultural or religious sentiments are hurt. Films exploring controversial and unconventional themes face obstacles for exhibition, although they are certified for public exhibition under the Cinematograph Act, 1952, the petition lamented.
The petitioner has highlighted the fact that the agitating groups enjoy great political patronage, and in view of this, act with brazen disregard for law, as the authorities dare not take any action under criminal law against them.
SC’s 2009 intervention
In 2009, the Supreme Court, in In Re: Destruction of Public and Private Properties vs Government of Andhra Pradesh, laid down the following guidelines:
- Wherever a mass destruction to property takes place due to protests or thereof, the High court may issue suo motu action and set up a machinery to investigate the damage caused and to award compensation related thereto.
- Where there is more than one state involved, such action may be taken by the Supreme Court;
- In each case, the high court or Supreme Court, as the case may be, appoint a sitting or retired high court judge or a sitting or retired District Judge as a Claims Commissioner to estimate the damages and investigate liability.
- An Assessor may be appointed to assist the Claims 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 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 – 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 damages to public and private property, those causing injury or death to a person or persons; and cost of the preventive and other actions by the authorities and police.
- The Claims Commissioner will make a report to the high court or Supreme Court which will determine the liability after hearing the parties.
In the nearly ten years since these guidelines came into force, there have been many incidents of violence, triggered by protests organised by fringe groups, resulting in damage to public and private properties, but there have been no instances of authorities relying on these guidelines to secure justice for those who suffered losses.
The Supreme Court, which has reserved its orders in the Kodungallur Film Society case, must, therefore, introspect on why its guidelines have not been complied with by the authorities.
DDA as the role model
The AG cited the example of the Delhi Development Authority (DDA), fixing responsibility for violations of its master plan to stop encroachments. On June 1, the DDA issued a public notice making officials accountable for any illegal construction activity or violation of the master plan. The notice stated:
“If any illegal construction activity is detected by the STF (Special Task Force) during consideration of reports and no corrective action has been initiated timely, it will be presumed that such activity has been or was undertaken in connivance with the official responsible for the area. In such cases, STF will direct authority concerned to initiate disciplinary action against the official, along with issuance of a show cause notice. If the reply is unsatisfactory, an FIR will be lodged against the official.”
The FIR will be under Section 13 (1)(d) of the Prevention of Corruption Act, and relevant provisions of the IPC for allowing illegal/unauthorised constructions to take place in the grid for which he/she has been made in-charge.
The Supreme Court-mandated special task force comprises the vice-chairman of DDA, secretary to the LG, commissioners of civic bodies, CEO of the Delhi Jal Board, secretaries of transport, revenue and urban development, a representative of the central water commission, commissioner (planning) of DDA and special commissioner Delhi Police and Traffic. The STF has been entrusted with the task of identifying encroachments on public land and suggesting the course of action. The report stated:
“In case of past instances of unauthorized constructions, STF will take immediate cognizance and appoint a three-member committee. The committee, comprising one member each from DDA and the authority concerned and an independent member, will examine and verify the allegations, along with identifying the officials responsible for the same.”
The DDA placed an action plan before the Supreme Court, listing out steps including launching an interactive website and a smartphone application to enable the public register their grievances regarding illegal constructions and upload photos. The AG, who appeared for the DDA before the Supreme Court bench of Justices Madan B. Lokur and Navin Sinha, has reasons to be satisfied about the action plan.
The DDA claimed to have prepared a grid of officers who would be held accountable for all future illegal constructions. It shall be the responsibility of the officers in the grid to check, in their areas of jurisdiction, all construction activities to determine their nature.
It also fixes the responsibility on the concerned officers in the grid, consisting of 31 officers from different civic agencies and DDA, in case no timely remedial action is taken on the complaints regarding illegal constructions.
If timely action is not taken, it would be presumed that such activity has been undertaken in connivance with the officer responsible for the respective area, it said.
The AG’s proposal for a similar plan to tackle public display of vigilantism by fringe groups, by fixing responsibility on the SPs, may, on the face of it, inspire confidence. However, the recent amendment of the PCA by parliament does not create the requisite trust that it will be effective. After all, the SPs, like the DDA officers, who connive with law-breakers, have to be safeguarded against under the PCA.
The amended PCA requires a police official or an investigating agency to obtain prior sanctions before starting an inquiry against a public official. The sanction has to come from the “concerned authority”, who has not been identified. The Lokpal and the Lokayuktas Act, 2013 envisages Lokpal at the Centre and the Lokayuktas at the state level to be the “concerned authorities” for this purpose, but the Centre has been procrastinating on setting up the Lokpal and Lokayuktas, despite periodical strictures from the Supreme Court. This suggests that Venugopal, as the AG, may have to take his independent role to its logical culmination, and advise the Centre to take effective steps to stem vigilantism by fringe groups.This article was first published in The Wire