Khargone (Madhya Pradesh): On 25 August 2022, a police constable showed up at 34-year-old driver Kalu Khan’s one-room apartment in the south western Madhya Pradesh town of Khargone and handed him four notices.
“I was told my neighbours had filed claim petitions against me and my son,” said Khan, a tall, stout man.
Khan’s Hindu neighbours have claimed Rs 480,000 as damages from him and Rs 290,000 from his 12-year-son, alleging that both robbed and vandalised their home in the town’s Anand Nagar mohalla during communal violence on 10 April 2022.
The violence followed a Ram Navami procession that rolled through a Muslim-dominated part of the town, leaving 20 injured and one dead.
Khargone, 150-km south of Indore, is 61% Hindu and 37% Muslim.
“The policeman told me that we will have to face a tribunal and fight the case,” Khan told The Reporters’ Collective. Khan’s son, 12-year-old Arif (name changed because he is a minor), is being tried along with 270 adults, 65% of them Muslim.
The trial, underway since August 2022, is unfolding at the state’s first ‘claims tribunal’, set up under the Madhya Pradesh Prevention and Recovery of Damages to Public and Private Property Act (Madhya Pradesh Lok evam Niji Sampati ko Nuksaan ka Nivaran evam Nuksaani ki Vasuli Adhiniyam, 2021) that came into force in January 2022.
Madhya Pradesh is the third state, after Uttar Pradesh and Haryana, to enact such a law. All states are ruled by the Bharatiya Janata Party (BJP).
The tribunal is a quasi-judicial body with powers of a civil court. It is empowered to recover damages from those held guilty of causing destruction to public and private property during riots and other violence.
“We were both at home on the night of the violence,” said Khan, who has been served three notices by his neighbours.
Under Indian law, a 12-year-old cannot be tried as an adult in any criminal proceeding in any Indian court. He can only be tried by a juvenile justice board, according to the law.
Lacunae In The New Law
Arif’s trial calls into question aspects of the state’s new damage recovery law in particular and the government’s response to communal conflict in general.
The trial exposes lacunae in the new law, which allows juveniles to be tried in civil offences, such as destruction of property and looting during riots, even if they do not face criminal charges of rioting.
If the tribunal holds someone responsible for damage, those so accused are legally bound to pay up to twice the amount of damage they allegedly caused, without any determination of guilt under the criminal offence of rioting and damaging property.
Arif was 11 years and 10 months old on the day of the riots, turning 12 only a month before he was served a notice to stand trial.
This puts him, a juvenile, within the bracket of “immature understanding”, according to the Indian Penal Code, 1870. The Reporters’ Collective has seen copies of Arif’s Aadhaar card and school marksheet. Both documents corroborate his age.
Arif is not named in the first information report (FIR) filed by his neighbors after the violence.
Legal experts said the tribunal’s investigative process was “vague” and “opaque”.
Tribunal rules, notified 18 days after the tribunal was set up, left it to tribunal members to decide how they would function. The tribunal comprises retired district judge Dr Shivkumar Mishra and retired state secretary Prabhat Parashar.
“The tribunal shall determine its process of hearing in the tribunal,” say the rules.
This approach, said experts, leaves tribunal proceedings without the safeguards available during a criminal trial, which follows specific laws.
Citizens Against Citizens
Under the MP law to recover riot damages, the State must appoint a retired judge and a retired government official to the tribunal, which will have the powers of a civil court and jurisdiction over the area that experienced violence.
The government then sends a panel of three state officials to this tribunal. The tribunal can pick one as its ‘claims commissioner’. Any citizen in the riot-affected area can file a claim for damages.
The commissioner decides which claims to consider, in effect holding a person so accused liable for property damage, a criminal offence, without a criminal investigation.
“How the tribunal carries out a probe is not known. The tribunals are not bound by Civil Procedure Code (CPC) but invoke CPC when they like,” said Talha Abdul Rahman, an advocate on record at the Supreme Court. “Tribunals are required to formulate some procedure to follow.”
For example, the law allows anyone to name “persons who in his knowledge had exhorted, instigated or committed the damaging act”. This person can be held liable “once the nexus with the event that precipitated damage is established”.
“The ‘nexus’ standard is vague and unclear and leaves room for the judge to deviate from established principles of evidence,” Advocate Megha Bahl, lawyer based in Delhi, told The Reporters’ Collective.
“Establishing merely a nexus is gross,” said Rahman. “Civil proof means balance of probabilities—mere nexus for affixation of any civil liability is perverse.”
We Do Set Some Of Our Own Rules: Tribunal Head
Neither the new law nor the rules explain what level of evidence is to be proven acceptable against an accused before the tribunal determines if the person is guilty.
Mishra, the retired judge heading the MP tribunal, acknowledged that the tribunal was setting some of its own rules.
“We follow the Civil Procedure Code but we don’t strictly comply with it,” Mishra told The Reporters Collective.
In a typical criminal case, the police, after registering an FIR, begin an investigation that involves collecting evidence, witness statements and interrogating the accused.
The police then file a chargesheet before a district magistrate, followed by arguments before a court on the framing charges. Once the charges are framed, the trial begins in court.
These standards of investigation are not applied in the summary trials by the claims tribunal, which, however, can fine those not yet pronounced guilty.
A tribunal’s decision might potentially influence parallel criminal proceedings against those accused of property destruction, said experts. The tribunal’s chairman, however, told The Reporters’ Collective that its decision will not have any impact on the criminal proceedings.
To clarify this and other doubts, the MP government gave anonymous interviews to friendly media.
But the government has made no official statement or modified the law.
This story was originally published in article-14.com . Read the full story here