Syed Khalique Ahmed | India Tomorrow
NEW DELHI, JULY 6—The latest action of the Lucknow administration seizing properties and threatening their auctions if their owners fail to deposit damages as assessed by the revenue officials without giving the alleged offenders a chance to prove their innocence or non-involvement in damage to public or private property during the violence that took place in the wake of anti-CAA agitation in the state capital on December 19 and 20 has raised questions about legality of the administration’s action.
While the Lucknow administrative officials have sealed three properties-two in upmarket Hazratganj and one in Khurram Nagar and threatened to auction them if the damages are not paid by July 16, former IPS officer S R Darapuri and prominent Congress leader Sadaf Jafar have reportedly been communicated through video-interactions with their families that their houses would be sealed and finally put to auction if they fail to pay the damages to the public and private properties. Neither Darapuri nor Jafar were present at their homes when a team of government officials visited them on Sunday. Darapuri, Jafar and Shoaib Khan, a well-know social and human rights activists, are among 57 people in Lucknow who have been served notices for recovery of Rs. 1.55 crore for damage to public/private properties.
After the Allahabad high court on March 9 declared the putting up of photographs, names and addresses of the 57 persons at prominent places in the state capital as part of “naming and shaming” as “illegal” and asked the state government to remove them and submit the action taken report to the court registrar before March 16, the state government challenged it in the Supreme Court. The apex court, while refusing to stay the high court order, told the Uttar Pradesh government that there is “no law” which allows putting up posters on roadsides with details of the accused involved in vandalism during anti-CAA protests. The top court also questioned the state government for violating the fundamental right to privacy of the accused by “castigating them for all times to come”.
The Supreme Court also set up a three-judge bench for further “elaboration of consideration” on “naming and shaming” action of the state government. But the matter could not progress in the court further because of lockdown in the wake of the coronavirus outbreak.
While the state government neither removed hoardings nor submitted the action take report to the high court, it brought an ordinance called The Uttar Pradesh Recovery of Damages to Public and Private Property Ordinance on March 15, 2020, after the high court order on “naming and shaming” and the Supreme Court not granting stay on the high court order. The ordinance aims at recovery of damages to public or private property during hartal, bandhs, riots and protests etc from the accused named in police reports but not convicted.
Deviating from the normal legal procedure under which the police or the investigating agencies have to prove the offence against the accused, the Ordinance wants the accused to prove his innocence from the alleged crimes simply after being named as accused in the police report.
Surprisingly, the Ordinance was made effective from retrospective date, something very unprecedented in legal history, with a view to implicating all those named as accused in police report on December 19 and 20 during anti-CAA protest in Lucknow and other places in the state.
But advocate Santosh Singh practicing in the Allahabad High Court says that the ordinance and the actions of the state government in seizing property of the accused and auctioning them is in violation of the Supreme Court guidelines in the case of “In Re: Destruction of Public & Private Property vs State of AP and Others”, 2009. The guidelines, according to Singh, are based on recommendations of the two expert committees: one headed by Justice K T Thomas and another by senior advocate Fali S Nariman.
Accepting the suggestions of the two committees, SC said that the prosecution must prove that the public or private property had been damaged in direct action called by an organisation, and that the accused also participated in such direct action. The apex court added that the law to recover damages to public property be amended to give the court the power to draw a presumption that the accused is guilty of destroying public property and it would then be open to the accused to rebut or disprove such presumption. This was done to ensure that no innocent person suffers.
The apex court also directed the police to make arrangements for videography in cases where it felt that there would be damage to public property during protests/hartals etc so that these could be used as an evidence about involvement of the accused in destruction of public property and claim it from the accused persons.
The Supreme Court also issued guidelines directing the high courts to set up machinery to investigate the damages and award compensation.
Based on these guidelines, Gujarat Patidar leader Hardik Patel got relief from the Supreme Court in connection with a case of sedition and damages to public property registered against him in 2015. As the prosecution failed to prove in the court that Hardik Patel had given a call for violence or he was directly involved in the violence and damage to public property, he was not held accountable for loss of public property.
Advocate Singh told India Tomorrow that the UP government had initiated action in violation of the SC guidelines in the case of damages to public property in Lucknow. He said that those named in the police report should have been questioned if they were present in the protest or not and were directly involved in damages to the public/private property. After that, the matter should have been taken to the court where the accused persons would get an opportunity to prove their innocence. If they are found guilty, the court would punish them. But in the present case, Singh said, the accused persons have not been given a chance to rebut the charges against them in a court of law. The revenue departments officials, based simply on police report, are issuing notices to recover the damages and seizing the property and threatening to auction them in case of non-payment.
Activist Rajiv Yadav from the Rihai Manch said that retired IPS officer S R Darapuri and human rights activist Shoaib Khan were under house arrest on December 19 and 20 and yet, the police have issued them notices for recovery of damages to public property. “This is totally illegal”, he says.
