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New Delhi: After protests against the Citizenship Amendment Act (CAA) broke out in several cities and towns of Uttar Pradesh, the Yogi Adityanath government warned that “revenge will be taken” against those who indulged in violence.

On 24 December, the first set of notices was sent to 28 people, asking them to pay up a total of Rs 14.86 lakh in damages for the destruction of government properties.

The notices mentioned a 2010 Allahabad High Court decision in the Mohammad Shujauddin v State of UP case, which issued guidelines for recovery of damages for destruction of public property during agitations.

But the Yogi government notices violated a 2009 Supreme Court judgment in In Re: Destruction of Public and Private Properties Vs State of A.P and others in which the top court made it incumbent upon state high courts — not governments — to recover the damages.

ThePrint takes a look at both the judgments — by the Allahabad HC and the Supreme Court — and what they entail.

Also read: 1,113 arrests, 5,558 preventive detentions, 19 dead: The impact of CAA protests in UP

SC placed onus on high courts

The 2009 Supreme Court ruling arose out of suo motu proceedings initiated in 2007, taking “serious note” of “large scale destruction of public and private properties in the name of agitations, bandhs, hartals and the like”.

The court formed two committees, one headed by retired Supreme Court judge Justice K.T. Thomas and another headed by senior advocate F.S. Nariman. Both committees submitted reports, following which the court issued the guidelines.

The three-judge bench comprising Justices Arijit Pasayat, Lokeshwar Singh Panta and P. Sathasivam noted that in the absence of a legislation, the high court could take suo motu cognisance of any instance of mass destruction to property due to protests.

The high court is expected to set up a machinery to investigate the damage caused and to award compensation. In case there is more than one state involved, the judgment said action may be taken by the Supreme Court, instead.

Also read: In Yogi bastion Gorakhpur, residents say police strictly obeying CM’s ‘revenge’ statement

Appointment of claims commissioner

According to the judgment, in every such case, the high court or the Supreme Court is required to appoint a sitting or retired high court judge or district judge as a “claims commissioner” to estimate the damages and probe liability. An assessor can also be appointed to assist the claims commissioner.

This team could ask for video recordings from private or public sources to examine the damage and to identify the perpetrators.

Liability could then be fixed on the perpetrators as well as organisers of the event. The damages could be shared between the two, as the court may decide.

The claims commissioner is expected to submit a report to the high court or the Supreme Court, which was to fix liability after hearing the parties.

These guidelines are to become inoperative only after a law is put in place by the states in line with the guidelines or in case any other fast-track mechanism is created by a law.

What Allahabad HC order said

The notices issued by the Yogi government, however, cite a 2010 Allahabad High Court order, instead.

The high court had then pulled up the UP government for its “complete apathy” in implementing the provisions of the Prevention of Damage to Public Property Act 1984.

The court had also noted the lack of implementation of the Supreme Court’s 2009 guidelines, observing, “Further, directions are in operation in the form of the Apex Court’s judgment yet nobody in the Government has bothered to follow the same and take appropriate action accordingly by taking real meaningful steps.”

Justice Sudhir Agarwal noted that this was because such activities were usually led by political leaders and parties. The judge, therefore, issued guidelines facilitating recovery for damage to public property if the incident leading to the damage “is at the invitation or instance of a political party or a sitting or former people’s representative”.

It stated that similar action would be taken if the loss is caused by “any other identifiable person or group”.

In such cases, Justice Agarwal ordered that the owner of the damaged property is required to file a claim for realisation of the amount from the political party or a sitting or former people’s representative.

The order also required the state-appointed competent authority to provide a hearing to the parties. It further encouraged the police to register cases against people involved in agitations or processions resulting in destruction of public property, mentioning their names “if agitations… are participated by the people’s representative or political persons whose identity is well known”.

The high court, therefore — going against the 2009 Supreme Court order — put the onus of recovering the damages on state authorities, and not high courts.

Also read: ‘Hit on knee and in stomach’ — women narrate ‘violence’ by UP Police inside Lucknow homes

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