New Delhi: The Uttar Pradesh government’s decision to ask alleged vandals, even before their guilt has been proven, to pay damages or face the seizure of their properties has left the legal community divided with most opposed to the move, saying it lacks any backing of the law.
So far the administrations of four different districts, which witnessed violence during the anti-Citizenship Amendment Act protests, have issued notices to over 130 people accused of rioting to pay up around Rs 50 lakh in damages. Incidentally, this action comes days after chief minister Yogi Adityanath said that the property of those found guilty of indulging in violence would be seized to compensate damage to public property.
The UP administration has proceeded with the threat and has also warned residents that defaulting on the payment would result in the attachment of their properties.
Districts implement Yogi’s threat
According to news reports, notices have been served to 28 people in Rampur, 26 in Sambhal, 43 in Bijnor and 33 in Gorakhpur whereas the damage to property has been pegged at Rs 14.8 lakh in Rampur, nearly Rs 15 lakh in Sambhal and Rs 19.7 lakh in Bijnor as per these notices. In the case of Gorakhpur, the damage had not been quantified.
The district magistrate of Rampur, Anujaneya Kumar Singh, was quoted as saying that “only those people who were caught in pictures and videos pelting stones or damaging property were served notices”. He said they have been given a week’s time to file their reply.
However, members of the legal fraternity have questioned this action and its basis. Most lawyers The Wire spoke to, insisted that the action was not in accordance with the law.
‘Confiscation of property here to curb dissent’
Senior Supreme Court advocate Sanjay Hegde said “confiscation of property is normally after a criminal trial. So this kind of action seems to be legally suspect and would be subject to further legal challenges.”
He added that it appeared that “(UP) administration is going ahead nevertheless just as a measure to curb dissent.”
Hegde further said that “normally provisions for forfeiture of property are only after the end of a criminal trial. So there cannot be any ipso facto confiscation”.
‘Unconstitutional, illegal decision; not supported by any law’
Another senior advocate C.U. Singh termed the action blatantly illegal. “This is grossly unconstitutional and illegal because it is not supported by any law and it results in pre-judging people without even the benefit of a fair trial.”
Singh charged that the action was being taken merely on the basis of an allegation. “It is particularly pernicious in this case because there is a serious allegation that a lot of the violence was instigated by third parties and by the police themselves. In fact, it was also alleged that it was perpetrated by the police themselves.”
The senior advocate insisted that “there are also Youtube videos which show the police destroying public and private property – so to impose demands on people to pay so-called reparations is grossly unconstitutional, completely immature and illegal.”
Questioning the action when “they have not even investigated anything” Singh said, the UP Government was acting like the “judge, jury and hangman”. “It has already decided that somebody is guilty and on that basis has issued demands, at least that is what one has read.”
‘Supreme Court allowed confiscation action against instigators, not perpetrators’
For the destruction of public property during a riot, Singh said that the Supreme Court had taken the view that ultimately people who are instigators of such riots should be taken into account and damages should be recovered from them.
“Most recently this happened in the violence during the release of the movie Padmavat. A petition was filed and then Chief Justice Dipak Misra reiterated what was earlier held by the Supreme Court. But all that is based on first finding that someone is guilty of instigating the riots and there too the instigators have to be proceeded against and not the faces in the crowds,” he pointed out.
Basic theme to demolish constitution, rule of law’
Another advocate, Mehmood Pracha charged that the “basic theme [behind the decision] is to demolish the constitution and rule of law – that is what RSS is doing. There is no provision under the law to start confiscating properties like this without even a trial.”
He said that the UP government was also identifying people without even checking the authenticity of CCTV footage to see if it has been doctored or tampered with. “In many cases, the protesters never indulged in violence and it was just to give them a bad name that others carried it out”.
Pracha said, “we will be carrying out a protest march against CAA from Karbala at 1:30 pm tomorrow with our hands tied behind our backs. This would ensure that we are not blamed for any violence.”
Pracha also claimed that “many people in Muzaffarnagar have taken pictures of people from RSS and VHP who were burning properties there. They have also displayed the names of these people. But the Yogi government has not acted against these people – it has not followed this practice (of issuing notices) universally.”
On the government’s claim that they are establishing rule of law, Pracha said “the Yogi government wants to do so by breaking the law and the constitution. Rule of law means the principle of natural justice – you cannot be held guilty before a free and fair trial. Here the punishment is preceding guilt and Yogi is breaking the law to establish the rule of law – what kind of dichotomy is that.”
Defending the action of the BJP government, senior advocate Aman Lekhi said “it is a welcome measure which was warranted considering the way in which arsonists take law into their own hands in India. Incidents like these are not unknown. Since there has been no punishment to those indulging in such riotous acts, these acts are undertaken with such impunity.”
The law, Lekhi said, is very clear. “The issue is if the decision of the government is wrong in principle. We are supposed to be a polity governed by law. A law is not necessarily only enacted law – law is legal rules and principles for which there is general concurrence.”
“The principle of law,” he said, “is that for a wrong there has to be a remedy; the justification of a state is maintenance of order; riots always impact public security and create disorder; the rioters, therefore, cannot claim exemption or immunity if there is evidence to show their involvement or participation.”
In the event of a riot, he said the government is obliged to act on behalf of society as a whole.
On the issue of legality, Lekhi said, “There are legislations in this regard even in the UK where they have amended an 1886 Act to provide for compensation and damages. Though that scheme is different from what Yogi government is doing, it shows that laws are put in place to deal with disorder”.
SC suggested amending Damage to Property Act
In India, Lekhi said, “the Supreme Court was seized by a similar issue of destruction of public property in the judgment by a bench headed by Justice Arijit Pasayat in which the reports of the committees, headed by Justice (Retd.) K.T. Thomas and noted legal luminary Fali S. Nariman, were considered.” There, he said, a suggestion was made to amend the Prevention of Damage to Public Property Act (1984).
Lekhi said, “considering the wanton indulgence in violence, the court had recommended that such actions be taken. So judicial approval and general acceptance of these actions are duly established.”
On the claims of critics of the move, he said compensation after a trial is a different issue covered under Section 357 and 357(a) of the Indian Penal Code. “That deals with victims of crime post-conviction but this is a case which is distinct and can’t be compared to those cases.”
‘State cannot remain silent to wanton wrong’
Lekhi elaborated that “in those cases apart from the assumption that the person is wrong, a court may make him pay fine or compensation in addition to the punishment. As far as the instant case is concerned, he said the UP Government has taken action where riots have taken place. “Here what was done was so wantonly wrong for the state to remain silent.”
Lekhi also expressed surprise at people protesting this decision. “Earlier when there were different protests for movies or issues where virtues or tolerance and pluralism were in some way being preached, at that point in time everyone was saying that some action must be taken. But now when protests over CAA have exceeded the bounds of legitimacy altogether and law has been taken into the hands, and where protesters have been violent to the extreme, they are objecting to appropriate corrective and punitive action.”
‘Enactments, judicial precedence back UP government action’
As far as the attachment of properties is concerned, Lekhi said, it is not unknown to law and all that the constitution says is that under Section 300(a), there cannot be deprivation of property except in accordance with the law.
Here, he said, “the issue is that the law is embodied across enactments and judicial precedence and the government can derive legitimacy from the law to do something which is fundamentally correct. And so, any action taken in discharge of this cannot be faulted on the ground of its lacking legal justification.”
As for action against cops involved in violence, he said if it can be shown that any of them were involved in the destruction of public or private property, then no sensible government would say there is immunity to them. “But the actions of the cops cannot be used as a bargaining chip – for two wrongs do not make a right.”