By Srishti Ojha
The Supreme Court on Friday sought the Uttar Pradesh government’s response on a plea challenging the notices sent to protestors for recovering losses caused to public and private property during protests against the Citizenship Amendment Act and the proposed NRC.
A division bench comprising Justices D.Y. Chandrachud and K.M. Joseph has issued notice and asked for a response from the State Government in 4 weeks.
The division bench also asked the counsel for the petitioner if any order has been passed, and if a state enactment exists in this regard, and on request by the Counsel, allowed the petitioner to make an application for making Union of India a party in the case.
The petitioner in the present case, Advocate Parwaiz Arif Titu stated that the notices sent by the district administration of the state of Uttar Pradesh were sent based on guidelines given by the High Court of Allahabad in 2010 in a judgement titled as Mohammad Shujauddin vs. The State of Uttar Pradesh, which is violative of the guidelines given by Supreme Court in judgements passed in 2009 and 2018.
Formation of Committee and guidelines by Supreme Court :
The Supreme Court took note of instances of mass violence and damage that it caused to public property across the country in 2007. The Court gave directions for formation of two Committees under former Judge K.T. Thomas and Senior Advocate Fali S. Nariman to recommend legal steps to handle the situation.
In a judgement passed in 2009 titled as Re: Destruction of Public and Private Properties vs Govt. Of A.P. the Supreme Court issued guidelines based on recommendations of these committees, and allowed the High Court to take cognizance of incidents of mass damages to public property in absence of a state legislation.
These guidelines were re-appreciated and re-affirmed in Supreme Court in 2018 in another judgement titled as Kodungallur Film Society & Anr. vs Union of India and Ors. The guidelines laid down were as follows:
- The guidelines will be applicable only in cases of absence of legislation in this regard
- In cases of mass destruction to property , the High Court may take suo motu action and set up a machinery to investigate the damage caused and award compensation. The Court can take suo motu action or the State Government may file a petition before the High Court.
- A sitting or retired High Court or District Court judge as a Claims Commissioner to estimate the damages and the liability.
- A report has to be given by the Claims Commissioner to the High Court or Supreme Court, following which the Court will decide the liability after hearing the parties.
Contradiction between the Guidelines given by Supreme Court and Allahabad High Court
The Supreme Court puts the Onus of assessment of damages and recovery from the accused on High Courts of every State, whereas the High Court puts it on the State Government, making them responsible for undertaking processes to recover damages.
The High Court guidelines take away the aspect of Judicial overview, removing a safety mechanism against arbitrary action, while in the Supreme Court guidelines, the High Court is supposed to give people an opportunity of being heard.
Reason for the petitioner moving before Hon’ble Supreme Court :
The petitioner has clearly stated the reason for moving the petition before the Supreme Court, as a Public Interest Litigation and not before the High court of Uttar Pradesh, in his petition before the Supreme Court. The reason stated is the situation of total anarchy in the state of Uttar Pradesh where people are afraid of their lives and property, and a possibility of not being spared by the state government. According to the petitioner, the Chief Minister of the state has been against the protestors from the very beginning, even before the demonstrations had begun he had declared that there was no reason for a protest against CAA, and many congratulatory tweets were posted by his office against the protestors.
The way in which the Government, administration, and police acted against the protests by using disproportionate force and denied public accountability, was completely against the basic principles of democracy, violation of principles of Rule of Law and complete violation of Fundamental Rights guaranteed under Article 14, 19, 20 and 21 of the Constitution of India.
The petitioner has moved the Supreme Court, also because he is challenging the guidelines of Hon’ble Allahabad High Court in a judgement passed in 2010, as being violative and in contradiction with guidelines passed by Supreme Court in 2009 and 2018.