Withdraw recovery orders against CAA protesters: SC
Giving the Uttar Pradesh government a week to consider withdrawing by itself all recovery orders issued against anti-CAA protesters, the top court commented that the state government is bound to follow due process and cannot assume the role of everyone in an adjudicatory process.
The Supreme Court on Friday observed that all orders issued by the Uttar Pradesh government to recover alleged damages to public properties from persons protesting against the Citizenship (Amendment) Act, or CAA, in December 2019 deserve to be quashed over procedural irregularities and non-compliance with its directions.
Giving the state government a week to consider withdrawing by itself all recovery orders issued against anti-CAA protesters, the top court commented that the Uttar Pradesh government is bound to follow due process and cannot assume the role of everyone in an adjudicatory process.
“You have become complainant; you have become witness; you have become prosecutor...and then you attach properties of people. Is it permissible under any law?” a bench of justices Dhananjaya Y Chandrachud and Surya Kant asked the state government’s law officer.
The top court was hearing a PIL filed by advocate Parwaiz Arif Titu, seeking quashing of notices sent to alleged protestors by district administration for recovering losses caused by damage to public properties during the anti-CAA agitations in Uttar Pradesh in 2019. Titu alleged that notices were sent in an arbitrary manner and in violation of a 2009 Supreme Court judgment which obligated high courts to set up machinery for assessment of damages and recovery from the accused.
According to the petitioner, recovery orders were issued against at least 900 persons in connection with the anti-CAA protests. In Lucknow, more than 40 people were given recovery noticesworth ₹64.37 lakh in all.
Opposition parties and several groups have protested against the implementation of CAA. CAA’s detractors believe that the law coupled with the National Register of Citizens (NRC) exercise is intended to target minorities living in India.
The bench was livid over the fact that instead of appointing judicial officers to adjudicate complaints regarding destruction of public properties and recovery of damages, the state government authorised additional district magistrates (ADMs) to recover the cost of public properties damaged by the demonstrations.
It reminded the state’s additional advocate general Garima Prashad that the Supreme Court’s 2009 ruling on the issue of damage to public property during protests was unequivocal that only judicial officers could be appointed as claims commissioners to examine complaints and issue recovery orders until the states come up with specific laws and procedure to deal with the subject.
“Had you framed a legislation, it would have occupied the field. But prior to legislation, how could you give this power to the additional district magistrates? Once we said you will appoint judicial officers, how did you appoint ADMs? All the exercise that you have carried out in December 2019 is contrary to the judgement of the Supreme Court and therefore, contrary to the law,” the bench told Prasad.
It added: “Really speaking, all the exercise that you conducted in December 2019 have to be quashed. They should all go to the claims commission for a decision afresh.”
Prashad sought to defend the state’s position by pointing out that in absence of a law on the subject, ADMs were being delegated the authority to pass orders in destruction of public property cases since 2011 and that hundreds of orders have been passed using the same procedure.
“Besides, most of those aggrieved by the recovery orders for protests in 2019 are already before the high court. My lords would also take note that more than 55 policemen were seriously injured during the protests,” she contended.
But the bench retorted that the state is duty-bound to follow the due process of law and abide with directions of the court in letter and spirit. “You have to follow due process of law. Ultimately, there has to be some guarantee of due process too. You need to also understand. There is a judgement by this court.... If you don’t know how to follow the judgment of this court, we will tell you how to do it,” the bench told Prashad.
The court added that the state should not force everyone to go to the high court. “We must lay down the law. Why should we force everyone to go to the high court? Not everyone is able to approach the high court,” it remarked.
Prashad, on her part, sought to rely on a 2010 judgment of the Allahabad high court, authorising “state-appointed competent authority” to provide a hearing to the parties and issue orders for recovery for damages to public properties.
But the bench was emphatic that the high court could not have modified or diluted the Supreme Court’s judgment on appointing judicial officers as claims commissioners. “Whatever the high court has to say, it has to be supplementing and in assistance of the order of the Supreme Court. Whosoever did this in 2011 (authorising ADMs), did this in contravention of the Supreme Court judgment,” it said.
The court also noted that while the state government in 2021 came up with a new mechanism and set up tribunals headed by sitting and retired judicial officers to assess damages and issue recovery orders, the old policy did not have any mechanism to appeal against the recovery orders issued by the ADMs.
The court then asked Prashad to deliberate with the state government officials on the possibility of withdrawing the 2019 orders and revert. “We will hear you on Friday next week and close it for orders. We will see what the state has to say on the next date,” the bench told Prashad.