UP’s damage to property law contravenes SC guidelines

The Supreme Court had, in a judgement in 2009, directed that for claiming compensation, the high court should appoint a Claims Commissioner and the court would finally decide the amount after hearing both parties.

SC GuidelinesImage Courtesy:tilakmarg.com

Earlier this month, the Supreme Court directed the Uttar Pradesh government to not proceed with earlier notices issued to alleged protestors for recovering losses caused by damage to public property during the agitations against the Citizenship Amendment Act, 2019 (CAA). Instead, the court asked the state government to follow the new law and the rules laid down thereunder to recover damages. Meanwhile, a new law, i.e., Uttar Pradesh Recovery of Damage to Public and Private Property Act, 2020 has been challenged and is pending before the Allahabad High Court for having provisions that contravene principles of natural justice and violate right to life and right to privacy.

The brute force with which the UP government and its administration dealt with the anti-CAA protestors is not distant memory. Section 144 of IPC restricting assembly of more than 5 persons was imposed in several districts and as per a fact finding report, in Firozabad, Police fired directly into the protesters, most of them above the waist killing six people. In Muzaffarnagar, the police, RAF and un-uniformed men in police jackets entered in numbers of 50 to 100 into two Muslim dominated areas destroying and vandalising all in its wake, while street lights were turned off. Resorting to scare tactics and allegedly warning people against participating in anti-CAA protests, the Uttar Pradesh cops carried lists of alleged anti-CAA protesters and their addresses, questioning locals of their whereabouts, houses, size of families, who and where they are and their age and profession.

The violence in Uttar Pradesh claimed 21 lives, more than 1,100 people were arrested and 5,558 people were kept in preventive detention.

In December 2019, reportedly, 295 people in the districts of Lucknow, Kanpur, Meerut, Muzaffarnagar, Sambhal, Rampur, Bijnor and Bulandshahr had reportedly received notices in connection with property damage worth at least Rs 1.9 crore.

The petition

The petition was filed by one Parwaiz Arif Titu seeking quashing of notices sent to the alleged protestors. It was alleged that some of these notices were sent to persons aged above 90 years and one was issued to a person who deceased 6 years ago; thus making their manner arbitrary. The petitioner contended that these notices were based on an Allahabad High Court judgement delivered in 2010 which “is in violation of the guidelines” laid down by the top court in a 2009 verdict, and re-affirmed in a 2018 order.

The plea states that the notices have been issued against persons who have not been booked under any penal provisions and no details of FIR or any criminal offences have been made out against them. The plea sought setting up of an independent judicial inquiry to probe into the incidents which happened during the anti-CAA protests, as was done by Karnataka High Court.

The Indian Express quoted the plea which said, “The government of Uttar Pradesh and its administration and police are no longer behaving like the arm of a democratic government as it cracked down on protests against the Citizenship Amendment Act, 2019/NRC. The police on the instructions of the Uttar Pradesh administration used disproportionate force and denied public accountability”.

The Supreme Court bench comprising Justices DY Chandrachud and MR Shah directed the UP government to file a counter affidavit giving details of rules and tribunals constituted under the new law and has now posted the matter for July 23.

The SC order may be read here:

The SC guidelines for recovering damages

The plea highlighted that the UP government stated that it was following the Allahabad High Court judgement in Mohammad Shujauddin vs. State of UP (Writ -A No 40831 of 2009; decided on 9 July 2012) which allowed the state government undertake these processes to recover damages.

However, the Supreme Court in Re: Destruction of Public and Private Properties vs. Govt. of AP (2009) 5 SCC 212 had put the onus of assessment of damages and recovery from the accused on high courts of every state. The court had stated that if a mass destruction to property takes place due to protests the High Court may issue suo motu action and set up a machinery to investigate the damage caused and to award compensation. The guidelines further stated that the court may then appoint a sitting or retired High Court judge or a sitting or retired District judge as a Claims Commissioner to estimate the damages and investigate liability.

The report of such determined liability is to be then presented to the court which will decide on the final liability only after hearing the parties.

The judgement may be read here:

The UP Recovery of Damages to Property Act

The UP Recovery of Damages to Public and Private Property Act, 2020 violates the Supreme Court guidelines where it allows for setting up of Claims Tribunals and allows the passing of ex-parte orders without allowing the noticee to challenge the same.

The law has been challenged before the Allahabad High Court on the basis that the law is redundant since the subject matter is already covered by The Prevention of Damages to Public Property Act, 1984 as also compensation as to public/private property and punishment for offences such as rioting and mischief, are already provided for the Criminal Procedure Code and the Indian Penal Code. The petition also questions the need for constituting a separate Claims Tribunal when all the requisite powers of dealing with the situation(s) are well within the domain of the Civil and the Criminal Courts.

Further, Section 13 and Section 19(2) of the law provides for publication of names, photographs and addresses of persons which is an unwarranted assault on the individual’s right to live with basic human dignity and the right to privacy. The Allahabad High Court had upheld right to privacy on March 8, 2020 when it directed the UP government to take down such ‘name and shame’ hoardings in absence of legal sanction.

The orders of the Tribunal are also supposed to final which means they cannot be challenged in appeal before a lower court, thus leading to barrage petitions before the High Court

The UP Recovery of Damages to Property Act- Timeline

There is a proper timeline of events that finally led to the passing of this Act right from the unlawful hoardings doxing individuals to the high court deeming it illegal. It all started with UP Chief Minister, Yogi Adityanath, declaring that properties of those involved in the violence would be seized and auctioned to compensate for destruction of public and private assets during the protests over the amended citizenship law and issued three recovery orders for the same. 

Thereafter, the administration displayed posters and hoardings throughout the state capital of Lucknow of alleged anti-CAA protesters in a crude and illegal way of ‘naming’ and shaming them. As many as 57 persons were named and with their addresses and photographs put up on posters and hoardings. They were accused of being part of the violence during the protests. The alleged protestors were also arbitrarily asked to pay huge sums compensation for “damage to public property” that took place during the violence at the protest in December, 2019. The hoardings also said that if these people fail to pay up, their properties will be attached/confiscated. The total amount of damage to property listed in the hoardings was up to Rs. 1.55 crore.

This led to the suo moto cognizance taken by Allahabad High Court on March 8, 2020, observing injury to the right of privacy. It held that this incident amounted to gross negligence on part of public authorities and government. The Court deemed these actions of the state to be “colourable exercise of powers by the Executive” which amounted to violation of Article 21 of the Constitution. The court also held that there was a valid apprehension of causing serious injury to the rights protected under Article 21 of the Constitution of India. It said that this caused injury to the precious constitutional value and its shameless depiction by the administration. “The cause as such is undemocratic functioning of government agencies which are supposed to treat all members of public with respect and courtesy and at all time should behave in manner that upholds constitutional and democratic values”, the court remarked. It then directed the Lucknow administration to remove the banners and file a compliance report by March 16, 2020. The order was then upheld by the Supreme Court on March 16 when the UP government challenged the same.

Taking cue from the high court’s observation that there was no law to back such action, the Uttar Pradesh recovery of damage to public and private property ordinance 2020 was cleared in the cabinet meeting in Lucknow, on March 15, 2020.

Speaking to the media, UP cabinet minister and state government spokesperson Siddharth Nath Singh had said, “Supreme Court in 2011 said that if a government or private property is damaged in any demonstration or protest, stringent law should be made for its prevention. Our government earlier issued an order but the SC, while hearing the anti-CAA hoardings matter, asked us under which law such action has been taken. Based on that we have brought an ordinance which will subsequently be converted into a law.”


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