UP Ordinance: Recovering Damages While Running Over Constitutionalism

On July 1 this year, the Uttar Pradesh government, in an unusual display of alacrity, started attaching the properties of alleged vandals in Lucknow who had apparently destroyed public and private properties across the state. Armed with a new, hastily enacted law -- the Uttar Pradesh Recovery of Damages to Public and Private Property Ordinance, 2020 – the government attempted to recover damages for trashing State and individual assets in the state capital.

This destruction took place during the anti-CAA protests that rocked the nation last December and in the early months of this year. Unlike his counterparts in other states, Yogi Adityanath, the Chief Minister of Uttar Pradesh, vowed to seek badla (revenge) from the alleged rioters for their acts of violence. He announced that his government would recover damages from the agitators, ostensibly because he wanted to deter lawlessness, violence, and vandalism.

The protests against the newly enacted Citizenship Amendment Act (CAA) were widespread. The popular upsurge was vehement in Uttar Pradesh. Muslims, who comprise 19.3% of its population, were angry that the new law not only discriminated based on religion but also required them to prove their citizenship. This, they feared, was a thinly disguised strategy to strip them of their nationality. Elsewhere, too, Muslims and secular Indians protested in large numbers.

The Uttar Pradesh government was ruthless in quelling the riots. Even by the standards of a state inured to routine police brutality, the actions of law enforcement agencies were egregious. A total of 23 people died in police firing and 5,500 people were held under preventive detention.

The UP government booked 450 agitators under the draconian Gangster Act and served notices to 372 people across the state, seeking damages for purportedly destroying public properties. In December 2019, at the height of the agitation, the government sealed 67 shops owned by Muslims in Muzaffarnagar to browbeat the agitators.

Not content, in February, in an unprecedented step, the Yogi government put up over 100 posters at major intersections in Lucknow, with pictures, names, and addresses of 60 people who, it claimed, had resorted to wrecking properties across the city. Many, whose photos adorned the posters, said they had nothing to do with the protests.

By publicising the names of so-called wrong-doers without evidence, even before their guilt was established in a court, the UP government clearly crossed a line. Its action had no basis in law, and it had endangered the lives of potentially innocent people by violating their privacy.

Appalled by the brazen act of the UP government, on March 8, the Allahabad High Court took suo motu cognizance and ordered the government to take down the posters by March 16. It held that the posters were unlawful as they violated the privacy of the accused and exposed them to mob violence. Undeterred, the UP government appealed the High Court’s fiat in the Supreme Court.

The Supreme Court was already hearing a petition filed by advocate Parvez Arif Titu regarding the legality of the damage recovery notices issued by the UP government. Titu’s petition highlighted two salient points: first, the notices overwhelmingly targeted Muslims; and, second, most often, they were issued arbitrarily. Thus, a notice was sent to a 94-year-old man who had died six years earlier. Evidently, the government wanted to harass people who dared to oppose its laws.

The Supreme Court found no merit in the UP government’s appeal. Upholding the Allahabad High Court’s order, the Supreme Court pointed out that there was no law which empowered the government to publicise the names of individuals even before their conviction. However, the Court appreciated the tension between privacy concerns and maintaining public order. It asked the matter to be placed before a larger bench for adjudication.

Though rebuffed by the Supreme Court, the UP government was relentless. Chief Minister Adityanath asked his law and home departments to circumvent the court orders. Thus, just four days after the Supreme Court’s dismissal and a day before the High Court deadline, the UP government issued a poorly drafted, harsh ordinance that empowered it to recover damages for vandalism.

The crass political agenda underpinning the new statute is hard to miss. Just as unconscionable are the provisions of the Uttar Pradesh Recovery of Damages to Public and Private Property Ordinance, 2020. The new statute provides for the establishment of a claims tribunal headed by a former district judge and an officer of the rank of additional commissioner of police. Endowed with the powers of a civil court, it has the freedom to adopt ‘summary procedures as it thinks fit.’ An assessor is appointed to help the tribunal determine the extent of property damages.

Whatever it may or may not accomplish, the ordinance and the bye-laws of the claims tribunal suggest that the UP government has no use for constitutionalism and the rule of law.

Consider this: the claims tribunal has powers to issue notices for recovering damages just based on a FIR (first information report) filed by a Circle Inspector. Thus, recovery begins even before a tokenistic investigation. All persons named in the FIR are automatically added as respondents and will be liable.

The only task of the tribunal is to mail the notice. Whether or not it reaches the defendant, the hearing will be held. Failure to appear on the appointed date will automatically result in an ex parte judgment and attachment of property. The onus of disproving the charges is on the accused.

Most important, the ordinance states that the determination of the claims tribunal is final and irrevocable. It cannot be challenged in any judicial forum! Upon conviction, the tribunal may publicise the wrongdoing and warn the public not to buy the defendant’s property.

Emboldened by the new ordinance, several district administrators in UP have served damage recovery notices on targeted individuals and businesses. This trend is quite pronounced in districts most affected by the anti-CAA demonstrations, such as Bijnor, Firozabad, Muzaffarnagar, and Lucknow.

Aside from the glaring anomalies in the ordinance and the politically charged circumstances that gave rise to it, there are five critical, if less obvious, issues that deserve attention.

First, aside from treating the accused as criminals before proper investigation and gathering evidence, the ordinance retrospectively criminalised conduct, an act repugnant to the basic canons of the rule of law. No further proof is required to establish political vendetta as the main driver of this initiative.

Second, contrary to its putative commitment to protecting property and upholding the law, hasn’t the Adityanath government repeatedly committed the very crimes it seeks to prevent? Thus, there were widespread reports that on March 19, policemen swooped on peaceful women protestors at Ghanta Ghar in Lucknow in the dead of the night, beat them up, and took away their blankets and food, an act that earned it the moniker ‘kambalchor sarkar.’

Third, if the UP government is serious about recovering damages, it has to first go after wayward cadres of some Hindutva groups, and rogue elements in the police whose rampage has been captured in various videos available in social media.

Fourth, the UP government’s ongoing campaign appears directed preponderantly against dissidents and human rights activists. For instance, it arrested former IPS officer S.R. Darapuri, currently the Vice-President of People’s Union of Civil Liberties in UP, and included his name on the posters. Darapuri angered the government by filing a PIL (public interest litigation) in the Supreme Court in 2018 demanding a Special Investigation Team to probe encounter deaths in UP.

Several other activists – prominently Sadaf Jafar and Mohammad Shoaib –suffered a similar fate. In contrast, ruling Bharatiya Janata Party (BJP) legislators, whose name figured in the Muzaffarnagar riots of 2013 – people like Sangeet Som and Sanjeev Balyan – and those involved in cow vigilantism, all remain untouched.

Fifth, the record of the Indian state, at all levels, in protecting public property is uninspiring. Even if one concedes that destroying property cannot be condoned, how can one excuse the repeated depredations of big business?

Take, for instance, the role of mega corporations in appropriating public resources, especially in extractive industries. In state after state, one finds that the government is in cahoots with business tycoons and corporate interests in mulcting our common resources.

In Karnataka, former Lokayukta, Justice Santosh Hegde, uncovered a multi-million rupees scam in the mining sector involving former BJP legislator, G. Janardhan Reddy and current Chief Minister, B.S. Yediyurappa. Neither of them suffered grave consequences.

In Odisha, media reports have pointed out that the Aditya Birla Group is engulfed in illegalities in mining operations. A commission of inquiry headed by Justice M.B Shah inquired into illegal mining of iron ore and manganese in Odisha. The Shah Commission discovered that between 2000 and 2010, in just the four districts surrounding the Baitarani River, minerals worth Rs. 59,203 crore had been illegally mined.

As of January 2018, the Odisha government had recovered just Rs.8,223 crore out of the Rs.60,000 crore in fines for illegal mining, which it imposed as far back as 2012. The government did not confiscate the properties of the defaulting companies.

In the past seven decades, business magnates, corporate moguls, and corrupt politicians have looted public wealth and property worth billions of rupees. For example, as of January 2019, Subrata Roy of the Sahara India Pariwar, currently on parole from Tihar Jail, owes his investors Rs. 10,621 crore. There are several others like Roy.

There is, thus, remarkable tolerance when the rich and powerful pillage people’s resources. If the government’s inaction is condemnable, more disgraceful is popular apathy toward this matter. Yet, the same people think nothing about stigmatising protestors struggling for their legitimate rights, a function of our grotesque priorities and fragmented consciousness.

Three reasons can be cited for why the Adityanath government unleashed its wrath against the anti- CAA protesters. First, to consolidate its Hindutva agenda, the government wants to mete out exemplary punishment to its opponents, specifically minorities and dissidents.

Second, the damages recovery ordinance is part of a larger game plan of majoritarian social engineering. Other aspects of this agenda include initiatives such as the UP Private Universities Ordinance and the Uttar Pradesh Public Health and Epidemic Disease Control Ordinance, 2020. While the former seeks to valorise Hindutva in higher education, the latter serves to vilify members of the Tablighi Jamaat as transmitters of COVID-19.

Cow vigilantism, love jihad, Operation Majnu, Anti-Romeo squads, encounter deaths, and the suspension of 35 out of 38 state labour laws for three years, are ancillary strategies. The ultimate goal is to perpetuate domination and precarity. Regardless, these tough postures in the name of masculine nationalism, enhance Adityanath’s popularity among his followers.

Third, Adityanath reportedly harbours ambitions at the national level. This dream can materialise only if he consolidates his position as the pre-eminent Hindutva warrior within the Sangh Parivar. A hardline stance against the anti-CAA protests serves this purpose.

Whatever his compulsions, the UP chief minister’s actions are ominous for democracy and the rule of law in India. Every law and new social initiative unveiled by the Adityanath regime has eroded constitutional values, procedural safeguards, and people’s faith in justice. Concomitantly, by squelching dissent, the chief minister is making democracy hollow. Coupled with authoritarian neoliberalism, this phenomenon can have grave consequences for human security and dignity. More disconcertingly, it will lead to alienation and cynicism.

To compound matters, with media ownership concentrated in the hands of big business, dissenting voices will be muffled. The elites couldn’t care less. They cannot relate to the noisy, messy democracy of the masses. However, criminalising dissent and crushing popular demands will not succeed in the long run.

The writer teaches Sociology and Asian Studies at Kettering University in Flint, Michigan, US. He is also a licensed attorney in the US. The views are personal.