Last week, Uttar Pradesh Chief Minister Adityanath warned that “revenge will be taken” against those who indulged in violence during the protests against the Citizenship Amendment Act that swept India’s most populous state. The administration in Rampur district has now sent notices to 28 people, asking them to pay up a total of Rs 14.86 lakh in damages for the destruction of government properties, The Indian Express reported.

The identical notices are based on an order passed by the Allahabad High Court in 2010. This order came in the wake of an order of the Supreme Court in 2009 on how to deal with damage to public property during mass violence.

But there is an important contradiction in the orders: While the Supreme Court had in 2009 put the onus of assessment of damages and recovery from accused on High Courts, the Allahabad High Court issued guidelines that let the state government undertake these processes.

The divergence has serious implications, as this article explains.

Recovering damages

In 2007, the Supreme Court took note of instances of mass violence and resultant damage to public property across the country. It formed two committees under former judge KT Thomas and jurist Fali S Nariman to recommend legal changes that could help handle such situations.

Based on the recommendations of the two committees, the Supreme Court in 2009 issued guidelines. It said in the absence of state legislation to cover such violence, the High Court may take cognisance of incidents of mass damage to public property on its own and set up a machinery to investigate and award compensation.

This can happen in two ways. The court can take up the matter if the state fails to intervene, or it can pursue the matter if the state government approaches it with a report on the damages in the form of a petition.

The guidelines said a sitting or a retired High Court judge or a district judge may be appointed as the claims commissioner to estimate damages and probe liability. Such a commissioner can summon evidence on instructions of the High Court. Once the liability is assessed, it will be borne by the perpetrators of the violence and the organisers of the event.

Given these guidelines, it is clear the Supreme Court attached a crucial role for the High Courts, and in case the violence was inter-state, to itself in the assessment of damages and recovery for compensation. The whole process, as per this judgement, was supposed to be monitored by the High Court or the Supreme Court itself. “The Claims Commissioner will make a report to the High Court or Supreme Court which will determine the liability after hearing the parties,” the court stated.

The Supreme Court did say that it was leaving the matter to the authorities “to take effective steps for their implementation.” However, such steps have to be in consonance with the spirit of the guidelines.

High Court and recovery

The notices served by the Rampur administration on 28 people cite the 2010 judgement of the Allahabad High Court in Mohammad Shajauddin vs State of UP as their justification.

It is interesting to note that the 2010 judgement, which was delivered a year after the Supreme Court put in place its guidelines, refers to the apathy of the Uttar Pradesh government in implementing the guidelines. The court points out that the Director General of Police sent a government order issued by the state to his officers. The communication of the government order merely asked for the implementation of the Supreme Court guidelines and attached a copy of the judgement without actually explaining the mode of implementation. This necessitated the High Court guidelines.

In its order, the Allahabad High Court said that when public property is damaged following a call for agitation by a political party or a politician, the police has to register a report citing the party or the person by name. The same process is to be followed even if it is not a political party or representative but the person or group is identifiable.

Then, the High Court said a competent authority “nominated” by the government has to assess the damage and receive claims from the public who have faced loses due to the violence. The court said:

“After giving an opportunity of hearing to the concerned persons, Competent Authority shall pass appropriate order within next 30 days. In case it is found that persons, against whom such claim is filed, were responsible for the said loss, the amount assessed and awarded by such Competent Authority shall be realized, if not paid on its own by the person responsible within such time as directed by such authority, as arrears of land revenue. A certificate to this effect shall be issued and sent by the competent authority to the concerned District Magistrate.

Thus, if the persons responsible for the damage fail to pay up, the amount shall be collected as arrears on land revenue. The court also ordered the formation of high level committee to oversee such cases.

Contradictions

What is apparent in the High Court order is that the aspect of judicial oversight in assessment of damages and recovery of compensation has been done away with. The High Court guidelines put the onus of action on the government. The Supreme Court wanted the High Court to hear the parties after the claims commissioner filed a report on the damages and then assess them to determine the liability of the accused.

Judicial oversight is a sort of safety mechanism against arbitrary action. Many of the agitations and protests which turn violent are political in nature. This means there is every chance that the ruling party could go after its political opponents or others opposed to it to settle scores. The High Court order, by vesting powers in the government without judicial oversight, seems to have overlooked this concern.

In the Uttar Pradesh violence, several videos have emerged where police personnel are seen damaging private and public property. But it is not clear if the Rampur district administration has acted against the police officers for their conduct and initiated proceedings to fix liability.