"You Are The Complainant, Prosecutor, and Adjudicator": Supreme Court Pulls Up UP Govt. For Acting On Recovery Notices To Anti-CAA Protestors

Allegedly, the December 19, 2019 protests in Lucknow and other parts of the state caused many causalities and substantial loss to public and private property, including Govt. buses, media vans, motor bikes, etc.

The impugned notices were issued pursuant to the 2010 verdict of the Allahabad High Court in Mohammad Shujauddin v. State of UP, Writ – A N0.40831/2009, whereby it was held that in case of destruction of public property, a competent authority nominated by the government has to assess the damages and receive claims from the public.

The petition filed by Advocate Parwaiz Arif Titu states that the said order of the high court is in violation of the guidelines passed by the Supreme Court in In Re: Destruction of Public and Private Properties v. Govt. of Appellant, (2009) 5 SCC 212.

In that judgment, the Supreme Court had issued guidelines stating that in absence of State Legislation to recover such damages on account of violence, the High Court may take cognizance of incidents of mass damages to public property on its own in suo moto action and set up machinery to investigate and award compensation. The guidelines state that a sitting or retired High Court Judge may be appointed as a Claimed Commissioner to estimate the damages or probe liability. Such a Commissioner can take evidence on the instructions of the High Court. Once the liability assessed, it will be borne by the perpetrators of the violence and the organizers of the event.

The Petitioner has asserted that the high court order is contrary to the Supreme Court ruling inasmuch while the Supreme Court put the onus of assessment of damages and recovery from the accused on High Courts of every State, the Allahabad High Court on the other hand had issued guidelines in that let the State Government to undertake these processes.

This according to her has serious implications. "The Judicial oversight/Judicial security is a sort of safety mechanism against arbitrary action. This means that there is every chance that the Ruling Party in the State could go after its Political opponents or others oppose to it to settle scores," he said.

The Petitioner has further pointed out that the notices have been issued in a very arbitrary manner since no details of FIR or any criminal offences have been made out against the persons to whom the Notices have been sent. In fact,

"Police had issued Notice in arbitrary manner against a person namely Banne Khan who died 6 years before at the age of 94 years and also sent Notices to 2 elderly persons who are more than 90 years and this reported Nationwide," the plea discloses.

The Petitioner has also sought directions to institute an independent Judicial Inquiry to probe into the incidents occurred during the protests against the CAA-NRC.

She submitted that in order to crack down the protests against CAA, the Police on the instructions of the UP Administration used disproportionate force and denied public accountability, vitiating the Rule of Law and infringing citizens' Fundamental Rights guaranteed under Article 14, 19, 20 and 21 of the Constitution.