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.
Despite Court Ruling In UP, MP Goes Ahead
The context in which the new law was enacted is hard to miss.
After the protests against the Citizenship Amendment Act 2019 swept across Uttar Pradesh, chief minister Yogi Adiyanath announced that he would make anti-CAA protesters pay for damages during the protest.
In March 2020, the state government erected hoardings with photos and personal details of citizens it deemed “rioters”.
That same month, the Allahabad High Court said the state’s action was in “violation of Article 21 of Constitution” and “amounts to unwarranted interference in the privacy of people”.
Despite this precedent, the Madhya Pradesh government, over a year later, brought in its property damage recovery act, with a clause explicitly allowing the claims commissioner to put up posters of people to whom notice had been served.
This poster, according to the law, will carry the person’s photograph and will be put up for display in “various public places of the district concerned”.
The riots in Khargone gave the government the opportunity to use its new law.
The Case Against Arif
In an FIR that he filed, Rakesh Gangle, 32, was on his way home from work at 9 pm when he saw a mob of “50-60” Muslims armed with swords, sticks, stones and glass bottles in his a mohalla or neighbourhood.
The mob, he alleged, was hurling stones and petrol bombs at houses there. Three rioters set his house ablaze, while others vandalised his neighbour's home, said Gangle.
Two days after the violence, the state government set up a claims tribunal. According to damages recovery law, the tribunal is set up primarily to, “assess the damages caused and to award compensation thereof”.
Three days after the violence, Rakesh, his relatives and neighbours, reported the incident to the police. The FIR names 36 Muslims as rioters.
“How he can identify 36 people during a riot and name them along with their fathers names in the FIR is baffling,” said advocate Sajid Pathan, who represents some of the accused.
Four months after the incident, on 25 August, 65-year-old Surujbai Gangle, Rakesh’s neighbour who had accompanied him to the police station to file the FIR, filed a claim with the tribunal.
Her notice, reviewed by The Collective, names Arif as one of those who damaged her property.
She alleged that rioters stole her jewellery and Rs 1 lakh in cash.
Under the petition’s “additional information that may help dispose of the claim” column, she mentions the FIR filed by Rakesh.
Under typical criminal proceedings, an FIR, which is only an initial complaint received by the police, is the beginning of an investigation. With MP’s tribunal law, an FIR now becomes a supporting document that aids the summary trial.
“Assuming that an FIR is the gospel truth is wrong,” said Rahman, the lawyer. “If the tribunal was doing an investigatory role, the FIR could be the starting point.”
Rakesh’s FIR does not even name Arif.
Armed with Surujbai’s claim petition, Khargone’s claims commissioner put Arif up for trial.
The tribunal will decide 343 claim petitions. Of these, 34 cases are currently active, including those filed by the Gangles. Others were either rejected by the claims commissioner or withdrawn. Of the 34 claims, 12 are from Muslims, 22 from Hindus.
The tribunal settled six claims—four by Hindus and two by Muslims —on 14 October: 50 people were fined a total of Rs 737,000. Claims have been made against 270 people, 177 of them Muslim and 93 Hindu.
‘Can a 12-Year-Old Not Be a Rioter?’
“We have complained to the tribunal that he’s a minor,” said Pathan, the lawyer representing some of the accused named in Gangle’s claim.
“The officials asked us, ‘can a twelve-year-old not be a rioter?’” said Pathan.
“But the question here is, how can a child be put up for trial?” said advocate Syed Asshar Warsi, who challenged the notice served to Arif before the Madhya Pradesh High Court.
The high court court, on 12 September 2022, dismissed the petition, saying that objections should be filed with the tribunal.
“If the objection is filed, the same shall be considered and decided by the tribunal in accordance with the law,” reads the order by Justice Vijay Kumar Shukla.
Warsi moved an application on 13 September 2022 before the tribunal arguing that serving Arif a notice was “wrongful” and “illegal”.
“We have not received any written order from the tribunal so far,” said Warsi, “But we have been told that our objection has been rejected.”
"In the case of juveniles, we only decide their civil liability,” said tribunal chairman Mishra. “Hence, they don't need to be tried separately by the juvenile justice board."
Legal experts said that even in civil liability cases, trying a juvenile falls in a grey area.
"Even challans issued against juveniles under the motor vehicles act for speeding are taken to juvenile justice boards,” an expert on juvenile law said on condition of anonymity because he did not want to comment on a trial that was underway. “This is because the spirit of the juvenile justice law is to reform a minor not penalise them."
“An incident can lead to both criminal and civil proceedings which can be undertaken in parallel or with one preceding the other,” said a senior Delhi lawyer, who requested his name be withheld.
"But in this case, keeping in mind the context of communal rioting, the proceedings at the tribunal could have a scurrilous effect," said the lawyer.
(Shreegireesh Jalihal is a member of The Reporters’ Collective, a journalism collaborative that publishes in multiple languages and media.)