As the proactive role of courts are being seriously debated and many argue for drawing boundaries for the seemingly undefined ‘judicial activism’, the recent decision of Kerala High Court (Hemant Kumar’s Case,2011) imposing preconditions for grant of bail, in cases involving destruction of public property, deserves attention. The judgment states that accused in cases involving destruction of public property should deposit the value of the property destroyed as security to be eligible for bail. Call it ‘judicial activism’ or a case of ‘judicial innovation’, recent media reports suggest that the judgment has started making repercussions, as major political parties in the state have instructed their cadres to be cautious on the streets. The judgment has also initiated a public debate, as the Kerala Government is trying to prepare a detailed valuation of public property destroyed in past few years and also intending to set up fast track courts to specifically deal with such cases.
Having a closer look at the issue, one is left wondering whether we were so far trying to curb the menace with an impotent legislation, Prevention of Damage to Public Property (PDPP) Act, 1994. A perusal of the legislation makes it clear that this miniature legislation have been carefully drafted as the law makers knew they would be at the receiving end quite often. Interestingly, in cases of vandalism, neither the offender nor the public at large seems to be concerned regarding the loss caused in total. On the contrary, anyone related with the government would know about the effort, time and procedural formalities after which a ‘pubic property’ is procured by the State, in addition to the cost involved and expenses for maintenance. Hence, the annoyance of the Court is justified as an authority which issues ‘writ of manadamus’ for delivering public services, Courts cannot be a mere spectators when public property is vandalised.
However, it is felt that the above mentioned judgment requires a strong statutory backing for proper implementation. This author believes that the value of a public property needs to be calculated considering the utility of the property and not solely on its physical value. Undoubtedly, we need guidelines and procedures to determine the ‘real value’ of property destroyed. On a broader perspective, it is suggested appropriate amendments needs to be brought so that obstruction of public service is also within the scope of ‘destruction’ for the meeting the objectives.
Earlier judgments, including Supreme Court observations in Inre Destruction of Public Properties(2009) and literature available on the subject, primarily accuses political parties as major destroyers of public property. But we fail to note that communal organisations and politically neutral protestors are equally liable. The protest by Gujjars last year can be sited as best example. It is also a debatable issue whether leaders of political parties can be held ‘vicariously’ liable for the act of a mob and forced to pay damages. It is for sure that the judgment will be challenged and will be subject for judicial interpretations in coming days. Many also believe that such penal amounts would be paltry for the super rich political parties. However, the bold stand by Kerala High Court and the subsequent reluctance to review the judgment has communicated strong message across political frontiers.