How Uttar Pradesh played judge, jury and executioner with CAA protestors

On February 18, the Uttar Pradesh government informed the Supreme Court that it has withdrawn 274 money recovery notices handed out during the agitation against the Citizenship Amendment Act in 2019 to protestors who had allegedly damaged public property. The state will also refund all the money paid out against these notices so far.

The Supreme Court had ordered the government to withdraw the notices since they did not follow the court’s guidelines on how to recover costs for damage to property during protests.

In addition, the government had also passed the Uttar Pradesh Recovery of Damages To Public and Private Property Act in August 2020. The court said that the government is at liberty to proceed against protestors under this law.

However, this new law is also contentious. It is based on an ordinance that has already been challenged in the Allahabad High Court for being unconstitutional.

What did the UP government do?

In December 2019, the Uttar Pradesh government sent 274 notices to people protesting the Citizenship Amendment Actprotestors for the damage allegedly caused to public properties due to these protests and asked them to reply. After that, an additional district magistrate passed recovery of money orders in 236 notices. All this was done without any judicial oversight.

These notices were challenged before the Supreme Court and the Allahabad High Court on the grounds that the way the recovery was carried out went against the law laid down by the Supreme Court.

What was the law dealing with damage to public property?

In 2009, the Supreme Court laid down guidelines on how to recover damages for public and private properties during riots and bandhs. In the case, the court took suo motu cognisance of the issues relating to large scale property destruction during agitations. Though there was already a Prevention of Damage to Public Property Act, 1984, the court felt that there were a lot of gaps in the legislation. Therefore, it appointed two committees to look into the issue.

As per their recommendations, whenever mass destruction to property takes place due to agitations like protests, the high court in the jurisdiction can take suo motu cognisance of the matter and set up a machinery to investigate the damage caused and award compensation.

It may also appoint a sitting or retired High Court or District Court judge as claims commissioner to estimate the damages and investigate liabilities. The claims commissioner has to make a report to the High Court, which would then determine the liability after hearing the parties.

Thus, the Supreme Court gave the power to the judiciary to oversee how damages have to be ascertained and recovered.

How did the state government’s action go against the law?

The government of Uttar Pradesh did not follow the Supreme Court’s 2009 guidelines. Rather than involving the judiciary, it undertook the entire procedure using the executive arm. The government sent notices, and the order of recovery was finally made by an executive officer, the additional district magistrate.

The Supreme Court had a problem with this. It pointed out that the state government had become the complainant, prosecutor and adjudicator in this case. The entire process in Uttar Pradesh was carried out by state government officials: from sending notices to passing an order for recovery of money. The Supreme Court said that it wanted the due process to be followed, which included the involvement of judicial officers.

In its defence, the Uttar Pradesh government cited a 2010 judgment of the Allahabad High Court. The Uttar Pradesh government claimed that this judgment had given the power to the state government to nominate the authority that will conduct hearings and assess the damages that are to be paid.

However, the Supreme Court pointed out that the high court judgment does not support the government’s actions either. In fact, the High Court order also takes note of the Supreme Court guidelines and says that their orders only supplement the latter.

In many of these cases, the damages were payable “jointly and severally”, which means that the government could take the requisite amount from one person and that person would have to claim the money from others. This was not permitted under the Supreme Court guidelines.

In addition, the government also put up posters of these protestors who had allegedly caused damage to properties, in a move to name and shame them. The Allahabad High Court had asked the government to take down these posters, saying that there was no legal provision justifying such publication. This was appealed before the Supreme Court, which did not stay Allahabad High Court’s order.

Now the matter is pending before a three-judge bench at the Supreme Court.

What is the new law brought by the Uttar Pradesh government?

After the Allahabad High Court passed an order to take down posters with the names of people protesting against the Citizenship Amendment Act, the Uttar Pradesh government promulgated an ordinance in March 2020 that would legally justify its actions. This ordinance also contained provisions on how to recover damages caused to public and private property during protests.

The legality of the ordinance was soon challenged before the Allahabad High Court where the matter is still pending.

This ordinance was passed as the Uttar Pradesh Recovery of Damages To Public and Private Property Act by the state Assembly in August 2020.

“While the Supreme Court has said that the government is free to take action under this law, it has not commented on the legality of such a move,” advocate Shadan Farasat told Scroll.in. “In the matter before the Supreme Court, the validity of the law was not in question.”

Can claims against 2019 protestors be brought under the new law?

Whether the law brought by Uttar Pradesh is legal might be tested later. However, the first thing to check is if the government can now bring action against the alleged Citizenship Amendment Act protestors from December 2019.

The law is effective from March 15, 2020, while the alleged crime for these notices took place in December 2019. This law does not specifically say that it can apply retrospectively. Further, it says that a claim has to be preferably brought within three months from the date of damage and a further delay of one month might be accepted. Even assuming that the government can apply this retrospectively, its legality of pursuing a claim now, two years after the event, would have to be tested legally in court.

“If the government brings action under the new law, it will be tested in courts eventually,” Talha Abdul Rehman, an advocate who had challenged the ordinance told Scroll.in. “The government will first have to show it can apply this law retrospectively and that it is within the limitation period.”

What are the problems with the new law?

However, in case the Uttar Pradesh government takes action pursuant to the new law passed by it, even then it may suffer from the same drawbacks that previously existed. The law also contravenes the Supreme Court’s guidelines. “The law suffers from a lot of problems,” Rahman said. “The processes, terms, etc. are not defined properly. There is a lack of judicial independence and the state has excessive control over all the steps”.

The law gives the state government the power to oversee the entire process as opposed to giving power to the judiciary, as proposed by the Supreme Court.

A claims tribunal has to be established by the state government which will consist of a retired district judge and an officer of additional commissioner rank. This claims tribunal is equipped with the powers of a civil court for taking evidence. This tribunal will collect all claims, send notices and also give an award of compensation. “The composition and operation of this tribunal go against the independence of adjudicating bodies required for their functioning,” Rahman said. “Government is, after all, a litigant and can’t control the tribunal.”

The law also specifically excludes any judicial review of the decision made by the claims tribunal. Judicial review is a part of the basic structure, which means that no legislature can take it away.

A claim against a person is set in motion when a first information report on property damage is filed. “This is problematic,” Rahman said. “FIRs can be filed against anyone by the police.”

Apart from this, the tribunal can potentially claim damages from a long list of people. It can go prosecute those who actually committed the destruction or incited others to commit it, but also against those who “exhorted” or “instigated” acts that gave rise to the liability. Even those who “sponsored, called for or exhorted the agitation” can be asked to pay the damage. These terms have not been defined and can thus include a large number of people.

The law also gives the tribunal the power to proceed ex-parte, without giving a hearing to the other side, in case the respondent does not respond to a notice given by the tribunal. It is also the tribunal’s discretion if the respondent can have a lawyer representing them.

These grounds, amongst many others, have been raised in the challenge to the ordinance pending before the Allahabad High Court. “However, the law will have to be specifically challenged,” Rahman explained.