Note: This article was first published on December 27, 2019 and republished on January 2, 2020.
The Uttar Pradesh government’s attempt to demand damages for the destruction of property by protestors is clearly a ruse to divert attention from police excesses. Somehow, Adityanath’s government seems to have forgotten that it is the rights that are fundamental and not the repression.
The state of UP has certainly not obeyed the diktat of the constitution not to impose unreasonable restrictions on the right “to assemble peacefully without arms” even in the interests of public order or the sovereignty and integrity of India. Having violated this most fundamental of constitutional duties, UP now wants to clamp down further on the repressed and exonerate the repressors.
Nobody can claim the right to destroy private or public property. It is a crime and a tort for which damages can be awarded by a court of law. But the method and due process by which this is to be done cannot be arbitrary or target the innocent.
This matter confronted the Supreme Court when the Gujjar protest resulted in massive damage to private and public properties and in Re Destruction of Public and Private Properties (2007), I was appointed amicus curiae on June 5, 2007. I told the court that random impositions of criminal or civil liabilities was not possible and suggested the appointment of the Justice Thomas Committee to examine the Prevention of Damage to Public Properties Act, 1984 (PDPPA) and other legislation and Fali S. Nariman to examine the duties of the media. In addition, K. Parasaran and I also met the paramilitary authorities which had sent 6 companies to quell the riots.
The PDPPA was woefully inadequate and simply created a new offence with a punishment of up to six months with fine for ordinary cases and, where fire and explosives were used between one and 10 years imprisonment with fine. Criminality requires due process not collective or individual finger pointing.
At that point in time, Justice Pasayat was in a self-imposed race to be known as the Supreme Court judge who delivered the most judgments and orders. In this frenzy, he often plagiarised passages from other judgments without acknowledgement and copiously copied from written submissions. In this case, I had drafted the submissions incorporating crucial inputs from Justice Thomas and Fali Nariman. The judgment does little more than reproduce the reports of the committee, which were presented without too much discussion and the judgment only said things like “The recommendations of the Justice Thomas Committee according to us are wholesome and need to be accepted”.
The Nariman Committee’s submissions were accepted with less flourish. Without more input, the recommendations of both committees were accepted and the judgment proceeded with some more extensive scissor and paste on the powers of the court. It does not really matter how the guidelines were enunciated. It might have been better if fundamental principles of complicity and liability were examined threadbare. But what the Supreme Court lays down is the law of the land.
The destruction by the Gujjar demonstration was massive and ran across Rajasthan, Haryana, UP and Delhi. The army was summoned. My report on the affidavits shows that many FIRs were filed and arrests made, and huge damage to private and public property. I note from my report that a DTC bus was also burnt at New Friends Colony, where I live (ironically we saw a repeat of this recently). The Jantar Mantar protests were peaceful.
In May 2007, police firing took place on NH8 and NH11 and near Bundi, and in the villages of Morda, Bayana, Bonli and Virat Nagar, killing 18 persons. In Patoli, the crowd lynched a policeman to death. In turn the Gujjars were violently opposed by the Meenas. I looked at each report with horror but also analysed all feeds of CNN IBN, Times Now, NDTV, Sahara News and Star News to report to the committees that the media had not exaggerated and had acted responsibly.
The court ignored the detail on who was responsible, thus blaming everybody, and issued scissor-paste guidelines. But mindful of free speech, the bench accepted the Nariman report that no guidelines were needed because statutory bodies and voluntary codes were enough.
What was significant, though, was that then Rajasthan chief minister Vasundhara Raje entered into five rounds of negotiations, four of which collapsed. But the fifth round, on June 4, 2007, was successful and the Bainsla-Raje agreement was unanimously approved by the Gujjar mahapanchayat at Pushkar. The army was called back to the barracks.
This is important and in sharp contrast to the reaction to the CAA protests of 2019, where the Union government and those of UP and Karnataka simply did not care to enter into any discourse with the protestors but simply lashed out at them.
Why was this? Raje knew she wanted to please several vote banks – Gujjars, Meenas and other OBCs, ST and SCs. In 2019, the BJP governments at the Centre and in states feel that they can ignore Muslim votes and Left-liberal protests because their solid vote bank is the Hindu conglomerates, including the gundas it compulsively reaches out to. They simply don’t care for the rest, as long as the divide and rule works. The second reason is that the BJP simply does not give up its ‘muscular (anti-)nationalism’ against the Muslim whom its cohorts demonise.
UP’s damages strategy
Under the guidelines of the Supreme Court in the Gujjar case, states and their high courts (and where the damage went beyond one state, the Centre and the Supreme Court) should take charge. Justice Sudhir Agarwal of the Lucknow bench (of Babri Masjid fame) lamented that the PDPP Act was not being invoked, not quite appreciating all the directions in light of the impotence of the PDPP Act and the full import of the Supreme Court’s guidelines.
But Adityanath has ignored much of all this since he is hell bent on not putting the blame on the police and blaming the protestors, who are not of the BJP. The ‘modalities’ laid down by the Supreme Court require not just videography but also that “…VII. The Police should immediately inform the State government with report on the events, including damage, if any by the police”. Note the emphasis on the damage done by the police.
The next modality VIII reads: “The State Government should prepare a report on the police reports and should file a petition including its reports in the High Court or Supreme Court as the case maybe for the Court to take suo motu action”. Thus the entire exercise was to be under the aegis of the courts to finally determine matters, and not the state or Central government. The reports have to be placed before these courts. Somehow, Adityanath seems to have gazumped the idea but not the process.
Equally important are the guidelines which require the claims commissioner to seek guidance from the high court and Supreme Court. Of course the police-caused damages have to be addressed, according to the modalities. Without this essential part, the report of the police and state government would be incomplete and inadequate. Damages were also to be awarded for “…causing injury or death to a person and persons.” For the state government to target private demonstrators and ignore police action is anathema.
Pretending to be more virtuous than virtue, the state has projected some damages quantified in monetary terms. But the real point is that complicity and specific liability have to be proved before the claims commissioner, who has the duty “…to pinpoint the damage and establish nexus with the perpetrators of the damage”. Obviously he had to examine the material and the people in order to obviate this becoming a paper-only exercise.
During discussions on the Gujjar protest cases, both committees were concerned that a crime (there can be no doubt that any such probe was certainly to investigate a crime) needed to follow all the incidences of due process. Nariman was also in favour of considering civil action through tort. These concerns find place in the Supreme Court’s view that these directions should be superseded by statutory remedies, which it was hoped will be enacted.
Ten years later, such a law has not been enacted. Despite their limitations and incomplete fairness, even these guidelines have not been invoked before. The reason for this is that the police atrocities would also come under the scanner and even point to orders issued by the government. These guidelines did not authorise unilateral action by a state, but required the high court and Supreme Court’s supervision.
The UP government must also remember that according to the seven-judge Allahabad high court decision in Amarawati (2004) there is no compulsion to arrest where there is a cognisable offence overruling what the court said earlier. Amarawati was confirmed by the Supreme Court in Lal Kamlendra’s case (2009). In the present protests, the state has detained more than 5,000 persons and arrested more than 1,000.
For the moment, it is clear that the actions of the Adityanath government are diversionary and an insult, exposing the partiality of a fanatical government undermining all that is sacred to the rule of law and good governance.
Rajeev Dhavan in a senior advocate.