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Supreme Court (SC) said it will hear all pleas related to the Jamia Milia Islamia clashes while issuing a stern warning to students to stop riots. Citing destruction of property amid anti-Citizenship Amendment Act protests in the national capital, Chief justice of India SA Bobde said, If violence and destruction of public property continues, we will not hear it. The development comes as several pleas have been filed after a violent clash between Delhi Police and Jamia students. Pleas on similar clashes in Aligarh Muslim University will also be heard by the Supreme Court. Meanwhile, protests were carried out in several places in West Bengal and Assam. At least 5 trains and three railway stations were torched in West Bengal. Similar scenes were witnessed in Assam as well.

A large number of citizens are on the streets protesting the newly amended Citizenship Act. Their right to protect emerges from Article 19 (1)(a) of the Constitution. It gives all citizens the right “to assemble peacefully and without arms”. Citizens hitting the streets of cities across states against the Citizenship Amendment Act are exercising their fundamental right guaranteed under the Constitution. But the visuals beamed on the television show that many of them are using arms – stones, bricks, lathis and some inflammable materials too and have damaged public property, even resorting to setting public and private vehicles on fire. These violent protests have taken place at places where restrictions were imposed under Section 144 of the Criminal Procedure Code (CrPC). Resorting to violence during protest is violation of a key fundamental duty of citizens. Enumerated in Article 51A, the Constitution makes it a fundamental duty of every citizen “to safeguard public property and to abjure violence”.

What the law says?

  • The Prevention of Damage to Public Property Act, 1984 punishes anyone “who commits mischief by doing any act in respect of any public property” with a jail term of up to five years and a fine or both. Provisions of this law can be coupled with those under the Indian Penal Code.
  • Public property under this Act includes “any building, installation or other property used in connection with the production, distribution or supply of water, light, power or energy; any oil installation; any sewage works; any mine or factory; any means of public transportation or of telecommunications, or any building, installation or other property used in connection therewith”.
  • However, the Supreme Court has on several earlier occasions found the law inadequate, and has attempted to fill the gaps through guidelines.
  • In 2007, the court took suo motu cognizance of “various instances where there was large scale destruction of public and private properties in the name of agitations, bandhs, hartals and the like”, and set up two Committees headed by former apex court judge Justice K T Thomas and senior advocate Fali Nariman to suggest changes to the law.
  • In 2009, in the case of In Re: Destruction of Public & Private Properties v State of AP and Ors, the Supreme Court issued guidelines based on the recommendations of the two expert Committees.

 Supreme court guidelines:

  • The Supreme Court held that those giving call for protests should be made liable for damage to public property. It also suggested that law should be changed to make the protesters prove their innocence.
  • The protesters have often argued that they did not give a call for violence and those resorting to violence were “outsiders”. The Supreme Court reiterated this point in October last year.
  • A three-bench of the Supreme Court ruled, “Persons who have initiated, promoted, instigated or any way caused to occur any act of violence against cultural programmes or which results in loss of life or damage to public or private property either directly or indirectly, shall be made liable to compensate the victims of such violence.”

Violent Civil Protests in India:

  • Article 19 of the Indian Constitution protects freedom of speech, allowing citizens, for one, the right “to assemble peaceably and without arms.” This includes the right to form associations, hold meetings, and come out in processions.
  • The Constitutional right to assembly is, however, subject to certain regulations contained in a number of laws, such as the Indian Penal Code, the Criminal Procedure Code, and the Police Act of 1861.
  • These laws empower the government to impose certain “reasonable restrictions” on the right to assemble, if such assembly is likely to lead to a disturbance in public peace and order or if it poses a threat to national sovereignty.
  • With this, the Constitution seeks a balance between the freedom of speech guaranteed in Article 19 (1) (b) and social order as defined in Article 19 (3).
  • The police also have the duty to control and regulate crowds while providing citizens the space and peace to exercise their right to assembly.
  • However, there are times when the protest takes a violent turn, either among the protesters or between them and the police. The risk of a protest turning violent has increased in recent times.
  • Article 246 of the Constitution places ‘public order’ and ‘police’ under the jurisdiction of the state. This gives each state government full legislative and administrative powers over the police.
  • Each state’s police force has two components: the civil police and the armed police. While the civil police control crime, the armed police are specialised police units that deal with extraordinary law and order situations.
  • Although matters of the police are a state subject, the Constitution empowers the central government to intervene in certain police matters in order to protect the state in times of emergency.
  • The Ministry of Home Affairs (MHA) can deploy Central Armed Police Forces (CAPFs) to the state to assist the state civil police and armed forces.[2]

How does the Home Ministry and Police deal with such an issue?

  • Police start with minimum force.
  • Fundamental rights provide right to dissent but there are some restrictions.
  • The agitators have violated certain basic set of laws.
  • The law as it stands today is one has to be reasonable while demonstrating.
  • There has to be permission from police and place is fixed.
  • Duty of the police remains the same irrespective of the state.
  • There is no law which can stop police from entering college premises if law is broken.

 Way Forward:

  • The right of citizens to protest and gather peacefully without arms is a fundamental aspect of India’s democracy. While it is also the right of the government to protect civilians from violent protests, certain essential principles need to be kept in mind.
  • A big ‘no’ to destruction of public properties and big ‘yes’ to right to protest.
  • Force should be used by the police in a very judicial manner.
  • There is freedom of expression, demonstration, association but intention should be correct and not violence.