By Rongeet Poddar
Introduction
The district administration in Lucknow recently issued a string of notices to many political activists to recover compensation for the damage caused to public and government properties during the stir against the contentious Citizenship Amendment Act in December.[1] The Additional District Magistrate (East) promulgated an order which set a time-limit of thirty days for the activists to pay the penalties.[2] Failure to pay compensation will result in the attachment of the properties.[3] In December 2019, the state administration had issued multiple notices to recover damages from protesters allegedly involved in the destruction of public property during the nationwide protests against the citizenship law.
Recently, a writ petition filed in the Supreme Court of India has challenged the legality of these notices. The petitioner has urged the apex court to quash the notices.[4] The Allahabad High Court has taken cognizance of the writ petition and consequently granted an interim stay order until the Supreme Court conclusively decides the legality of the notices.[5] However, the state functionaries, including the Chief Minister of the state, contend that the protests took a violent turn.[6] Therefore, the administration was well within its powers to penalize protesters for alleged destruction of property.
Judicial Precedents: Limited Discretion for Executive?
The retributive acts of the Uttar Pradesh government suffer from various legal infirmities. It disregards previous judicial rulings of the Supreme Court. Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984, incorporate severe penalties for deterring damage to public property.[7] Section 147 of the Indian Penal Code also criminalizes acts of rioting.[8] However, these laws only attribute liability upon the exercise of due process of law. The penalties prescribed cannot be meted out by the executive authorities in the absence of a fair trial by pre-judging the guilt of the accused.
In In Re: Destruction of Public & Private Properties v. State of Andhra Pradesh[9], the Supreme Court of India laid down a set of guidelines for assessing damages in case of large-scale destruction of properties during protests based on the recommendations of two expert committees. The court held that the High Court could issue suo moto action and set up an appropriate mechanism for investigating the damages that may have taken place. Significantly, the guidelines require the appointment of a sitting or retired High Court judge or a sitting or retired District Judge as the ‘Claims Commissioner.’
The foremost duty of the Claims Commissioner is to summon video evidence from private and public sources to identify the damage. The Supreme Court opined that the principle of absolute liability would be applicable to penalize the perpetrators of violence and the organizers only after the evidence accrued established a clear nexus. The apex court has recently affirmed these guidelines in Kodungallur Film Society v. Union of India[10].
However, in Mohammad Shujauddin v. State of U.P. and Ors.[11], the Allahabad High Court wrongly overlooked the substantive part of the apex court’s guidelines. It empowered an officer of the state administration, not below the rank of an Additional District Magistrate, to assess damages. The High Court laid down that any person could file a complaint in the area where public property is damaged. The Magistrate would then pass an order for recovering damages after providing an opportunity of being heard to the accused.
Guilt by Association: A Chilling Effect on Free Speech?
The judgement of the Allahabad High Court opened a Pandora’s box. It set a dangerous precedent wherein the executive could take advantage of the indeterminacy in the process to penalize individuals at its discretion. The absolute removal of judicial oversight enables the state to initiate a witch hunt against political opposition. The Allahabad High Court decision further allows the majoritarian dispensation in Uttar Pradesh to systematically target religious minorities and trigger a spiral of religion-based segregation. It could also potentially cause internal displacement in the long run. The spate of communal violence in the state in recent years fails to assuage such fears.[12] In Maneka Gandhi v. Union of India[13], the Supreme Court had held that a deprivation of a person’s right to life under Article 21 of the Constitution of India could not be restricted by executive actions that are “arbitrary, fanciful or oppressive.”
Executive discretion poses the danger of blurring the distinction between peaceful protesters and miscreants who indulge in violence. Thus they appear to establish a standard of proof based on “guilt by association”. The Supreme Court has emphatically rejected the doctrine in its past judgments[14]. In Arup Bhuyan v. State of Assam[15] the apex court reiterated the inapplicability of the principle and held that membership of a banned organization would not result in criminal liability in the absence of evidence that establishes involvement in violence. The normalization of ‘guilt by association’ dilutes the difference between espousing contrary political views and instigating violent acts.
‘Public order’ constitutes one of the limitations on the freedom of speech and expression enshrined in Article 19 (1) (a) of the Constitution. In Shreya Singhal v. Union of India[16], the apex court had followed the decision of the U.S. Supreme Court in Brandenburg v. Ohio[17] to distinguish between mere advocacy of opinion and incitement of violence. The court had held that only the latter would come within the reasonable restriction of maintaining public order. The notices seem to be a concerted attempt on the part of the state to stifle dissent by inflicting economic losses on protesters. This practice is thus likely to have a chilling effect on free speech.
Conclusion
Recently, the district administration put up banners at public spaces in Lucknow with the names, photos and residential addresses of a select few activists against whom compensation notices were issued.[18] A two-judge bench of the Allahabad High Court took suo moto cognizance of the matter[19] and directed the state to immediately remove the banners.[20] The court relied on the landmark Supreme Court judgement of K.S. Puttuswamy v. Union of India[21] wherein the apex court had held that the autonomy of an individual constitutes “the inviolable nature of the human personality.” The Allahabad High Court observed that there was no legitimate basis for the placement of personal data on public display. It had no rational nexus with the state’s avowed object of deterrence. Therefore, it reflected “colourable exercise of powers” by the executive without the requisite authority of law. The judgement clearly illustrates the mala fide intent of a vengeful state government to crackdown on political opposition.
The Constitution imposes an obligation to ensure that executive actions are in consonance to the principles of natural justice. The burden of compensation payment or the subsequent attachment of property upon failure to pay cannot be rooted in arbitrariness. In any civilized democratic order, punishment cannot be meted out by negating due process. The apex court should, therefore, take a leaf out of the Allahabad High Court’s book this time to conclusively uphold its own precedents and strike down the compensation notices.
The author, Rongeet Poddar, is currently a 5th Year B.A. LLB. (Hon.) student at the National University of Juridical Sciences (NUJS), Kolkata.
[1] Anti-CAA protests: Sadaf, Darapuri among 28 told to pay Rs 63 lakh as damage to property, The Indian Express (20/02/2020), available at https://indianexpress.com/article/india/anti-caa-protests-sadaf-darapuri-among-28-told-to-pay-rs-63-lakh-as-damage-to-property-6276661/, last seen on 25/02/2020
[2] Ibid.
[3] Ibid.
[4] A. Saxena, Anti-CAA Protests in UP: Plea in SC To Quash Notices To Recover Public Loss From Protestors, Livelaw (24/01/2020), available at https://www.livelaw.in/top-stories/plea-in-sc-to-stay-notices-to-recover-damages-for-public-loss-in-up-during-caa-protests-read-petition-151984, last seen on 25/02/2020
[5] Allahabad HC Stays Notice to Recover Public Loss From Anti-CAA Protestor, Livelaw (13/02/2020), available at https://www.livelaw.in/news-updates/allahabad-hc-stays-notice-to-recover-public-loss-from-anti-caa-protester-read-order-152703, last seen on 25/02/2020
[6] CAA protests: Adityanath justifies police crackdown in UP, says everyone has been silenced, Scroll (28/12/2019), available at https://scroll.in/latest/948079/caa-protests-adityanath-justifies-police-crackdown-in-up-says-everyone-has-been-silenced, last seen on 25/02/2020
[7] Ss. 3 & 4, The Prevention of Damage To Public Property Act, 1984
[8] S. 147, The Indian Penal Code, 1860
[9] (2009) 5 SCC 212
[10] (2018) 10 SCC 713
[11] W.P. No. 40831 of 2009
[12] 21 people killed in riots, protests in past 6 months in UP: CM Yogi Adityanath, India Today (25/02/2020), available at https://www.indiatoday.in/india/story/people-killed-riots-protests-past-months-up-cm-yogi-adityanath-1649823-2020-02-25, last seen on 25/02/2020
[13] (1978) 1 SCC 248
[14] Indra Das v. State of Assam (2011) 3 SCC 380; State of Kerala v. Raneef (2011) 3 SCC 784
[15] (2011) 3 SCC 377
[16] (2015) 6 SCC 1
[17] 395 US 444 (1969)
[18] UP Erects Hoardings With Names, Photos of Anti-CAA Protestors, The Wire (06/03/2020), available at https://thewire.in/rights/up-anti-caa-protest-horadings, last seen on 07/03/2020
[19] CAA Protests: Allahabad HC Takes Suo Moto Cognizance of UP Police Banners With Photos of Persons Accused of Violence, Livelaw (08/03/2020) available at https://www.livelaw.in/top-stories/caa-protests-allahabad-hc-takes-suo-moto-cognizance-of-up-police-banners-with-photos-of-persons-accused-of-violence-153591, last seen on 09/03/2020
[20] ‘No Court Can Shut Its Eyes If A Public Unjust Is Happening Just Before It’: Allahabad HC on Suo Moto Action Against ‘Name & Shame’ Banners’, Livelaw (09/03/2020), available at https://www.livelaw.in/top-stories/allahabad-hc-on-suo-moto-action-against-name-shame-banners-153646, last seen on 09/03/2020
[21] (2017) 10 SCC 1
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