Following the Supreme Court's comments to the Uttar Pradesh government on Friday, 11 February, to withdraw its recovery notices sent to anti-CAA protesters in December 2019, there might finally be an end to a gross injustice that never should have happened.
"You have to follow the due process under the law. Please examine this. We are giving one opportunity till 18 February," the bench of Justices DY Chandrachud and Surya Kant said. "Withdraw the proceedings, or we will quash it for being in violation of the law laid down by this court."
As many as 274 notices were sent by the Yogi Adityanath government to protesters against the Centre's controversial citizenship amendment law in December 2019, demanding they pay compensation for the damage allegedly done to public property during the protests that swept across the state – as they did across the country.
While the UP government claimed at the time that these recovery notices were in accordance with a judgment of the Supreme Court itself from back in 2009 (as well as a subsequent Allahabad High Court order), the apex court said on Friday that this wasn't, in fact, the case.
Justice Chandrachud noted that in its 2009 judgment, the Supreme Court had allowed for claims tribunals to be set up to order compensation for damage to public property, but that these had to be headed by judicial officers – retired or sitting judges.
The UP government, however, had appointed additional district magistrates, i.e., administrative service officers, to head the claims tribunals that assessed the damage for the 274 notices sent in December 2019. In 236 cases, the compensation demanded from the authorities was confirmed by these claims tribunals.
"You cannot bypass our orders. How can you appoint ADMs, when we had said it should be by judicial officers? Whatever proceedings were conducted in December 2019 was contrary to the law laid down by this court."Justice DY Chandrachud to UP government on 11 February
The Illegality Was Obvious From the Start
While it is welcome to see the apex court come down strongly on the UP government over this issue, it should be noted that the illegality of the notices sent by the UP government was clear from the start, and is not a matter of interpretation.
Back on 25 December 2019, The Quint had pointed out how the notices were not in consonance with the Supreme Court's 2009 judgment.
In addition to the state's use of non-judicial officers in the claims tribunals, the state government's notices ignored the fact that any order for compensation has to be confirmed by a relevant high court after receiving a report from a claims tribunal.
The UP government also sought to use an Allahabad High Court order from 2011 to back up its claim, but as was pointed out in The Quint back then, that order makes clear reference to politically instigated violence.
Justice Chandrachud, on Friday, also noted that the high court's order was meant to be supplementary to the Supreme Court's 2009 decision, and so it could not be used to justify the state's actions.
The need for a judicial officer's determination and confirmation from the courts should be quite obvious to anyone with some amount of legal knowledge. The apex court had said in 2009 itself that liability could only arise after a "nexus" had been established between the person in question's actions and the damage to property.
For executive officers to send the compensation notices and then decide the validity of the claims meant that the government had "become the complainant, the prosecutor, and the adjudicator," as Justice Surya Kant observed in consternation on Friday.
This was so blatantly illegal that it should not have needed judicial intervention to realise this.
And yet the UP government not only pushed these illegal notices out, but also failed to withdraw them, even after questions were raised by the Allahabad High Court over notices sent to people back in December 2019, such as former IPS officer SR Darapuri.
A number of these notices have been stayed by the high court over the last two years, but the government continued to double down on them and has been trying to enforce payment of compensation in many cases, which is why the apex court finally issued a warning to the UP government.
It should be noted that even though the notices should finally be withdrawn now by 18 February, when the state government has to come back to the Supreme Court, the trauma suffered by those who were sent these notices for huge sums of money will not go away, and at this point, there doesn't appear to be any compensation being ordered for the government's illegal actions.
New UP Law Doesn't Save Govt's Illegal Actions – And is Also Itself Unconstitutional
It is perhaps worth noting that the top court's intervention at this time only relates to the notices sent in December 2019. The Uttar Pradesh government subsequently passed a law (as an ordinance in March 2020 and a year later as an Act) to allow it to recover compensation from those it blames for damage to public and private property.
Under this law, claims tribunals are to be set up to determine whether an individual is liable for damage done to public property and private property owned by religious bodies, societies, trusts, waqfs, or any “firms” (not property owned by individuals, according to its text).
These claims tribunals are to be headed by retired district judges, which is in accordance with the Supreme Court's 2009 judgment.
However, as the Supreme Court judges pointed out on Friday, this law cannot be used to correct the errors made by the UP authorities when sending notices in December 2019, as the UP government tried to argue.
"Now, there is no provision in the new law for the transfer of cases which were decided," Justice Chandrachud said during the hearing, according to LiveLaw. "And no provision for appeal under the new Act! These poor people, whose properties have been attached, will have no remedy!"
The point made by the judge about there being no provision for appeal under the new law also shows how the new law is also unconstitutional in many ways (though that is not the subject of the case currently being considered by the apex court).
Once again, these flaws are hardly difficult to note. The Quint pointed out a number of flaws in the law when it was originally passed as an ordinance, including:
It doesn't allow appeals against orders passed by a claims tribunal for compensation to the courts. The Supreme Court in multiple decisions has held that the jurisdiction of the high courts and the Supreme Court can't be taken away by law. Even setting aside those clear precedents, it is obvious that not allowing any appeal or challenge to an order which can be used to take away a person's property cannot possibly be fair.
The law allows creating a 'name and shame' system, where the authorities can publish the names, addresses, and photographs of people to whom notices are sent. As the Allahabad High Court had pointed out nearly two years ago, such systems are a violation of the right to privacy (an appeal by the UP government against this finding remains in cold storage at the apex court).
The legality of the UP law will need to be considered by the Allahabad High Court or the Supreme Court at another time, but at least for now, those who were illegally targeted by the Yogi Adityanath government with these compensation notices before the law came into force should finally get some relief.
The question that does need to be asked though is why a state government keeps taking actions and passing laws which are blatantly unfair and unconstitutional – and whether the courts need to start stepping in more proactively to prevent the abuse and harassment of citizens that such actions entail.