On January 8, the Allahabad High Court issued a notice to the Uttar Pradesh (UP) Government seeking an explanation on the deteriorating law and order situation in the state and the police's conduct in response to the protests against the Citizenship Amendment Act (CAA). The past two months have allegedly witnessed police brutality, civilian arrests, and internet shutdowns at the hands of the authorities in UP. Additionally, the state’s Chief Minister Yogi Adityanath adopted an unprecedented policy of ordering the seizure of private property of those participating in protests. He claims this is to compensate for the damage to public property.
To justify this action, the UP government invoked the Prevention of Damage to Public Property Act, 1984. Under this Act, any action by an individual, group or political party that destroys public property can be punished with imprisonment for five years and a fine. This law also provides a special provision which disallows granting bail to any individual accused or convicted under the Act.
Under the garb of this Act, the administration took two distinct, yet problematic, steps. The first is the establishment of a four-member panel to assess the quantum of damage done to the public property across UP; the Additional District Magistrates are evaluating the damage done in their respective districts. The second, and more problematic step, is of taking punitive measures without adjudication by any authority regarding the guilt of the individuals against whom the action is taken.
The 2011 Allahabad High Court judgment allows for the creation of a panel to investigate offenses under the Prevention of Damage to Public Property Act. In this case, the court mandated the nomination of a ‘competent authority’ by the State government to assess the damage done to the public property. The ‘competent authority’ has to make this evaluation within 30 days. This evaluation, however, can only be performed upon giving the accused a fair chance to defend himself.
In addition, the panels have not followed the procedure outlined in the judgment. The District Magistrate of Rampur, Aunjaneya Singh, reports that they have “identified 25 people involved in the violence. FIRs are being registered and the process to attach their properties and further action as needed has begun”. Thus, property seizures have begun before the provision of a free and fair trial.
More importantly, the judgment violates the 2007 Supreme Court judgment that the Allahabad High Court relied upon. The Supreme Court ruled that the power to set up a mechanism to investigate damages and awards lies solely with the High Court of the state in question. The Supreme Court has this power only in situations where more than two states are involved.
The authority set up by the courts must be headed by a retired High Court or Supreme Court judge. However, the power to determine the final liability of each accused person will lie in the hands of the respective court.
The Supreme Court deliberately excluded the government and the local machinery to avoid any bias in the investigation. By awarding the powers to the Additional District Magistrate and the State Government, this raises doubts about the impartiality of the investigation since they have a vested interest in the result.
However, the panel and their actions are the lesser of two evils. The punitive actions that the administration took, prior to any investigation, has no legal backing. Without an investigation following the procedure set up by either the Act or the two judgments, any penalisation would be unilateral and arbitrary.
The UP administration has served hundreds of notices across the state. Moreover, in Bulandshahr, as per videos and state government press releases, prominent citizens from the Muslim community have already handed a Demand Draft worth approximately 6 lakh rupees in compensation for damages for violence in their town. Any such punitive measure would require the establishment of guilt by a court.
These measures violate the Prevention of Damage to Public Property Act and also contravened the guidelines put forth by the Supreme Court and the Allahabad High Court, which require indisputable evidence to show participation in the destruction of property. Merely indicating that the individuals have participated in the protest is insufficient evidence under the established legal framework.
The 2009 Allahabad High Court judgment flouts the guidelines put forth by the Supreme Court. This creates an illegal procedure under the Act allowing for arbitrary punitive measures against protesters due to violence by a few. Moreover, there are allegations of vandalism by the police themselves, corroborated by videos wherein the police are seen damaging shops, vehicles and other private property in Kanpur and Begumganj. Thus, the arrests and property seizures in UP have been justified under misguided interpretations of the law. With the next hearing before the Allahabad High Court scheduled for 17 January, it remains to be seen whether this will be corrected by the state or central authorities, or if it will now be accepted as the new normal.
Reference List
Prevention of Damage to Public Property Act, 1984. Act No. 3 of 1984. (16 March, 1984).
In Re: Destruction of Public and Private Properties v. State of Andhra Pradesh. Writ Petition (Cri.) No. 77 of 2007. Supreme Court of India.
Mohammad Shujauddin v. State of Uttar Pradesh and Ors. (Writ No. 40831 of 2009). Allahabad High Court.
Abhishek, K. (2019, 27 December). CAA Protests: UP Government starts process to seize property of protesters involved in violence. India Today. Accessed on 9 January, 2020 from https://www.indiatoday.in/india/story/caa-protests-up-government-starts-process-seize-property-protesters-involved-violence-1630471-2019-12-22.
Bhatnagar, G.V. (2019, 27 December). No Legal Backing for UP Govt’s Action Against Property of ‘Rioters’: Lawyers. The Wire. Accessed on 9 January, 2020 from https://thewire.in/law/uttar-pradesh-protest-property.
HT Correspondent. (2019, 27 December). Muslim group in UP pays compensation for damages done in protest. Hindustan Time. Accessed on 9 January, 2020 from https://www.hindustantimes.com/lucknow/muslim-group-in-up-pays-compensation-for-damages-done-in-protests/story-z2cDwPEMZ3mZxst6Fym6iK.html.
IANS. (2019, 22 December). Lucknow district magistrate sets up 4 member panel to start the process to seize property of rioters. Free Press Journal. Accessed on 9 January, 2020 from https://www.freepressjournal.in/india/lucknow-district-magistrate-sets-up-4-member-panel-to-start-the-process-to-seize-property-of-rioters.
NH Correspondant. (2019, 22 December). Police Detain MPs, Seal Shops, Confiscate Property of ‘Protesters’. National Herald. Accessed on 9 January, 2020 from https://www.nationalheraldindia.com/india/up-police-detain-mps-seal-shops-confiscate-property-of-protesters.
Pandey, A. (2019, 27 December). Received 6 Lakh Cheque From Muslim Citizens as Damage Compensation: UP Government. NDTV. Accessed on 9 January, 2020 from https://www.ndtv.com/india-news/6-lakh-cheque-from-muslim-citizens-as-damage-compensation-up-government-2155376.
Punwani, J. (2019, 31 December). In Bulandshahr, the message to families who paid ‘damages’ for CAA protests in clear: Cough up and you’ll face no harassment. First Post. Accessed on 9 January, 2020 from https://www.firstpost.com/india/in-bulandshahr-the-message-to-families-who-paid-damages-for-caa-protests-is-clear-cough-up-and-youll-face-no-harassment-7845301.html.
TNN. (2020, 1 January). Cops to seek compensation for damage from rioters. Times of India. Accessed on 9 January, 2020 from https://timesofindia.indiatimes.com/city/lucknow/vandals-assets-to-be-confiscated-to-pay-for-damages-yogi-adityanath/articleshow/72894828.cms.
TNN. (2020, 1 January). Cops to seek compensation for damage from rioters. Times of India. Accessed on 9 January, 2020 from https://timesofindia.indiatimes.com/city/vadodara/cops-to-seek-compensation-for-damage-from-rioters/articleshow/73052362.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst.
Image Source: Hindustan Times