Not just public property, damage to private property also punishable; calls for such damage ‘abetment’
Srinagar: Damaging either public or private property, and calling for a strike or protest in which such damage is done, will invite punishment under law after Governor NN Vohra on Thursday promulgated “The Jammu and Kashmir Public Property (Prevention of Damage) (Amendment) Ordinance, 2017”.
An official spokesperson said that the amendment to the existing law has been made to implement directions of the Supreme Court given in the case, “In Re-Destruction of Public and Private Properties vs. State of A.P and others (2009)”.
The spokesperson said that the Governor, on the recommendations of the Chief Minister, in exercise of the powers conferred upon him under Section 91 of the Constitution of Jammu and Kashmir, promulgated the aforesaid ordinance, which will come into force with immediate effect.
The Governor issued the ordinance because J&K legislature is not in session currently.
According to the government, the ordinance has been enacted to achieve the following twin objectives: (i) to make punishable mischief to public and private property due to direct action; and (ii) to make any person calling for direct action liable for abetment of such offence.
“Consequently, whoever announces direct action in the form of strikes, demonstrations, or other public forms of protests which result in damage to public as well as private property can be punished with imprisonment for a period of 2-5 years and can be imposed a fine equivalent to the market value of the property damaged or destroyed,” the spokesperson said. “Further, the scope of the existing law which was earlier restricted to public property, i.e., primarily government property or property owned by government entities, has been enlarged to also include private property.”
A senior law department official told Kashmir Reader that the state law has been brought at par with the Indian government’s Act. “The damage done during stone pelting will invite criminal liability,” he said. “The government is now well within its rights to recover the damages, besides the punishment by the court.”
Former advocate-general of J&K, Advocate MI Qadri, explained that the scope of law has been enlarged. “It affects the right to protest,” he said. “Now, FIR against the damages during strike will name those who call for strike.”
Qadri said that by the new amendment, the “right to protest is being regulated rather than denied”.
Besides, he said, “Powers have been relegated to the judge to measure the quantum of damage done and the costs thereof, besides assigning punishment in such cases.”
Commenting on the said amendment and enactment of the law, senior lawyer, Zafar A Shah said, “While the government has promulgated the ordinance to protect public and private properties, the government should have, in order to be fair, also provided punishment for those security personnel who damage, destroy and bombard private property.”
“They, too, need to be punished for damaging private properties,” he said.
A senior political observer explained that given the instances of alleged damage to public property in the past during strikes called by resistance leaders or anyone else, the amended act will enforce penalties upon them if any such thing happens in the future.
“For instance, some property gets damaged during a strike called by somebody; the government is now lawful to initiate action those who called for the strike. That is why there is the word ‘abetment’ in the amended form of the law,” he explained.
“Time will tell as to how this amended law will affect those who call for strikes or any other kind of protest,” he said.