Explained: U.P. Recovery of Damage to Public and Private Property Ordinance, 2020

Reading time: 8-10 minutes.

The Division Bench of the Allahabad High Court comprising of Chief Justice Govind Mathur and Justice Samit Goyal, on 18th March 2020, while issuing notice to the Uttar Pradesh Government, said that “the ordinance is arbitrary in its very nature”. As per the learned counsels who made their submissions before the Court, the Ordinance also contravenes the law laid down by the apex court in the Rojer Mathew v. South Indian Bank Limited (2019).

 The Bench added that the purpose of the Ordinance seems to be to undermine the law laid down by a Bench of the High Court which recently ordered the State the removal of the hoardings displaying personal information of those accused of damaging properties during the protests against the Citizenship Amendment Act.

Purpose of the ordinance and its salient features:

On 9th March 2020, the Allahabad High Court ordered the State government to remove the hoardings erected at major intersections of Lucknow, stating the decision to be an “encroachment of public liberty”. Senior lawyer Ramakant Gaur said that the UP Government lacks the legal sanctity regarding such publications of photographs and erection of banners. Thereafter, the State government of Uttar Pradesh armed itself with a rigorous new law to recover compensation from those who damaged or may damage public and private property during protests and riots. The Ordinance establishes a “Claims Tribunal” which would have the authority to inquire into the impugned complaints and assess the damages.

As per the Ordinance, the owner of any private property or the head of the concerned office in respect of the public property damaged may file claims for compensation within three months of such incident. The order passed by the Tribunal would be final and no appeal would stand against it before any court of law. The Ordinance allows a presumption of guilt of the accused and expects them to present evidence of their innocence, thereby taking the burden of proof off the accuser’s shoulders.   

Salient features:

Claim Petition:

The Ordinance prescribes that during protests/demonstrations, etc.:

In case the damage is caused to any private property, its owner may complain with the Station officer;

In case the damage is caused to any public property, the District Magistrate/ Commissioner of Police shall take immediate steps to file a claim petition before the Claims Tribunal within three months, based on the reports of the concerned circle officer of Police prepared instead of the FIR registered against such incident.

Claims Tribunal:

For adjudicating these claims, the Ordinance stipulates the establishment of a Claims Tribunal at such places as may be notified.

Constitution of the Tribunal:

The Tribunal will consist of a Chairman and as many members, as the state may prescribe. The Chairman of the Tribunal will not be below the rank of a Retired District Judge and the Member of the tribunal will not be below the rank of an officer of Additional Commissioner.

The procedure of Claims Tribunal:

All claims petitions will be filed before the tribunal within 3 months from the alleged date of the incident. A 30 days condonation of delay provision has also been prescribed, subject to the applicant showing reasonable cause.

Notice to parties, appearance, and filings:

A notice of the initiation of proceedings will be sent to the opposite party by the Tribunal, along with a copy of the claim petition. Persons who fail to appear on the appointed date will proceed ex-parte.

The opposite party may file its written statement, within 30 days from the date of service of notice.

Recording of evidence:

The tribunal may take evidence on oath and summon the documents, as may be required.

Appearance through legal practitioner:

The Tribunal may, in its discretion, allow any to appear himself before it through a legal practitioner.

Powers, decisions, and appeal:

The Tribunal will be empowered to provide appropriate compensation to the claimant, based on the principles of absolute liability. Such liability will be borne by the actual perpetrators/instigators of the crime.

The Tribunal has also been given the power to appoint a Claims Commissioner to estimate the damages and investigate liability to assist in holding the inquiry. Such Commissioner will be responsible to make a report to the Tribunal within 3 months.

The Tribunal will have all the powers of a Civil Court. It has also been empowered to hold local inspections by visiting the site of the incident which in its opinion is necessary for a proper decision, at any stage of the inquiry.

The judgment of the tribunal will record the findings on each issue with reasons, amount of compensation and joint/severable liability.

The decision of the Tribunal will be final and no appeal will be maintainable against such order before any court.      

Controversy around it:

The impugned Ordinance has a surrounding controversy given some very notable reasons. The ordinance promulgated on 15th March 2020 aims at recovery of damages to public and private property during hartal, bandhs, riots, protests, etc. from those accused of causing such damage via a Claims Tribunal with no authority of judicial review by any other court of law. The Supreme Court, while hearing the appeal of the State government against the order of the Allahabad High Court to remove the hoardings erected in the state capital, asked about the law which supported the impugned action of the Yogi Adityanath led government, and consequently, the Ordinance was cleared by the state cabinet on Friday, 13th March 2020.

The Court held that the Ordinance seemed to be aimed at frustrating and undermining the order of the Court which urged the State government to remove the hoardings given that it had no legal sanctity.

Further, the court observed that the field of law wherein the Ordinance is deemed to be operative has been appropriately and exhaustively covered under central enactments, Code of Criminal Procedure, 1973 and Prevention of Damage to Public property Act, 1984.

Probable way forward:

The suitable way to continue with such compensations seems to be to try and arrange the intended recoveries under the existing laws and meanwhile, wait for the court to accept the justifications of the Ordinance. However, if the court shall deem that the ordinance promulgated by the U.P. government is not acceptable within the ambit of the Constitution, other efforts can be ensured in this regard, both at State and National levels.

Conclusion:

Back in 2011, the Supreme Court had itself stated that there must be stringent laws if the damages to properties during protests and riots have to be minimized. The U.P. Recovery of Damage to Public and Private Property Ordinance 2020 is a positive effort towards the cause. However, it must be ensured that the law is in accordance with the spirit of the Constitution and within the scope of the powers of the legislature. It must be ensured that the legislature does not abuse or misuse its power or manipulate the existing laws to achieve a result.  

Author: Himanshu Yadav from Faculty of Law, University of Allahabad, Prayagraj.

Editor: Tamanna Gupta from RGNUL, Patiala.

Hoardings by UP police: Constitutional angle

Reading time: 6-8 minutes.

Recently, the Allahabad High Court directed the Yogi Adityanath-led government of Uttar Pradesh to remove the hoardings containing names, photographs and residential addresses of the fifty-seven anti-CAA protestors and severely condemned the act by declaring it violative of right to privacy under Article 21 of the Indian Constitution.

The right to privacy refers to the right of an individual to be protected from public scrutiny and review. Article 21 of the Indian Constitution recognizes the right to privacy as a fundamental right. This was validated by the Supreme Court of India in the landmark case of Justice K.S. Puttaswamy vs. Union of India in 2017. 

Significance of this development

The court took suo moto cognizance of the incident under Article 226 of the Indian Constitution. This means that the Supreme Court (under Article 32) and the High Courts (under Article 226) can take an action when they are detailed about the violation of the law. This highly reflects judicial activism on the part of judges, to file a Public interest Litigation (PIL) and control the situation pragmatically and systematically.

The action taken by the judges was significant as the act by the Uttar Pradesh Police was ultra vires (beyond its powers) as it tried to take law in its own hands and punish the accused to create a deterrence effect, though they were not authorized for the same.

The right gained its validation precisely in 2017 and so, many precedents are required to be set as examples for its proper application. So, the PIL by the judges acted as a milestone in the development of the right to privacy and added to its worth. This step made it a stronger right and more authoritative as well.

Moreover, the right to life and personal liberty under Article 21 is the most basic fundamental right which is enforceable even during the times of emergency. Thus, it must gain recognition.

Background: The hoardings by UP police

On March 5, 2020, the police had placed several hoardings in the city of Lucknow pinpointing those accused of violence during the protests against the Citizenship (Amendment) Act. The hoardings contained the names, photographs and residential addresses of the accused. Additionally, the accused were also asked to compensate for the damages to public and private property within a prescribed time or have their properties confiscated by the district administration.

However, a division bench comprising Chief Justice Govind Mathur and Justice Ramesh Sinha took suo moto cognizance and held a special meeting. The Allahabad High Court then ordered the District Magistrate and Commissioner of Police of Lucknow to remove the hoardings as the act was highly undemocratic and violated Article 21 of Constitution and “amounts to unwarranted interference in the privacy of people”.

It further stated that “privacy was ‘intrinsic component’ of Part III of Constitution of India that lays down our fundamental rights relating to equality, freedom of speech and expression, freedom of movement and protection of life and personal liberty.”

Privacy as a constitutional right

The right to privacy in India has had a long history. The right to privacy was first discussed in 1954 in the case of M.P. Sharma vs. Satish Chandra wherein an eight judge bench held that makers of the Constitution did not consider the power of search and seizure as a part of the fundamental right of privacy and it was different from the Fourth Amendment of the Constitution of the United States.

Again, in 1962, a six judge bench in case of Kharak Singh vs. State of Uttar Pradesh held that domiciliary visits at night was unconstitutional for violation of ‘personal liberty’, but upheld that the right of privacy is not a guaranteed right under the Constitution. However, Justice Subba Rao gave his dissent stating that even though the Constitution did not declare the right to privacy to be a fundamental right, it was still an essential ingredient of personal liberty.

A similar incident happened in 1975 in the case of Govind vs. State of Madhya Pradesh where the three-judge bench upheld the existence of a fundamental right to privacy for the first time but the right was not absolute and could be interfered with by a procedure established by law.

Finally, in 2017, a nine-judge bench in Justice K.S. Puttaswamy v. Union of India gave a unanimous decision and proclaimed that Article 21 of the Indian Constitution guarantees to each individual a fundamental right to privacy.

Now, this leads to the question, how did the hoardings violate the right to privacy?

How were the hoardings in violation of this right?

The hoardings were clearly in derogation of Part III of the Constitution. By putting up the hoardings of the protesters, the police infringed their right to privacy under Article 21 and lowered their dignity. Moreover, the police even failed to appreciate their right to freedom of speech and expression under Article 19(1)(a). Even in the K.S. Puttaswamy case, the right to privacy was considered an element of human dignity and personal liberty.

Further, the police contended that the hoardings were put to create a deterrent effect but here are many more accused who have committed more heinous crimes but still there details have not been put up on the hoardings and thus, it was not justified to humiliate these protesters and invade their privacy.

Conclusion

The right to privacy is an ideal example of what we say as ‘today’s dissent is tomorrow’s majority’. It has had a remarkable history and overcame many stumbling blocks before finally gaining recognition in 2017.

The right to privacy is an intrinsic component of the Indian Constitution as well as of personal liberty guaranteed under Article 21.

In the above-mentioned incident, the Uttar Pradesh Police was not justified in putting up the personal details of the anti-CAA protesters as it not only violated their right to freedom of speech and expression but also violated their right to privacy. The act was highly undemocratic and challenged the Constitution.  The suo moto action taken by the judges gave a new ray of hope and took the right to privacy on a higher pedestal and thus, making it stronger and more authoritative.

To conclude, judicial activism should continue to be much more prevalent in India where injustice is not ignored and the rights of every person are successfully secured.

Author: Arya Mittal from Hidayatullah National Law University, Raipur.

Editor: Tamanna Gupta from RGNUL, Patiala

Explained: Section 144 of CrPC

Reading time: 6-8 minutes.

“Power corrupts and absolute power corrupts absolutely.”  -LORD ACTON

CAA and Imposition of Section 144 of CrPC

After the Citizenship Amendment Bill received assent by the President recently and became an Act, there were violent outbreaks of protest in different parts of the country. In Delhi too, there were many protests for revoking the Citizenship Amendment Act, which led to the imposition of Section 144 of CrPC in Seelampur, Kashmere Gate, Lahori Gate, Daryaganj, Delhi Gate etc.

However one of the main incidents that grabbed eyeballs of the country happened on 15th December 2019 when police used brute force, even resorting to tear gas, to suppress the protests by the students of Delhi’s Jamia Milia Islamia University.

According to the police, the students had resorted to violent means and hence violated Section144 of CrPC, which had been imposed there, and the police had no option but to detain those students and use other forceful means to maintain law and order.

Section 144 of CrPC

Section 144 of the Code of Criminal Procedure, 1973 give powers to the administration i.e. District Magistrate or the Executive Magistrate for issuing an order in cases of grave apprehended danger or nuisance. It provides with a full stop on individual’s liberty.

Peaceful assembly is enshrined as a Fundamental Right under Article 19 of the Indian Constitution but it can be curtailed if it is found by the administration that there is high apprehension of such activities disturbing law and order situation in the area. The restrictions can be imposed in a particular area or in entire town.

Under this section, the civilians are not allowed to be in possession of weapons (sharp edged metallic weapons, lathis or fireworks) with exception to police officials and personnel. The violation of the Section calls for an imprisonment up to 03 years.

Difference between Curfew and Restriction

When a curfew is imposed, the public activities are not strictly not allowed. Civilian traffic is put at a halt. Higher level of apprehended danger, violence or rioting is involved. Section 144 of the Code however, is imposed for the period of 02 months and can be withdrawn if normalcy is achieved. The imposition period can be extended over 02 months but cannot be for more than 06 months at one go.

Notable instances in 2019 where S.144 was imposed

There have been several instances where Section 144 has been imposed to maintain public tranquility. Some notable instances are:

  1. In the recent CAA protests, people have been detained and internet services have been shut down in several places other than Delhi such as Bengaluru, several parts of Karnataka, UP etc.
  2. After the abrogation of Article 370, in which the special status of J&K had been scrapped off, Section 144 of CrPC had been imposed in Srinagar and mobile, broadband internet and cable TV services were shut down.
  3. People in Hyderabad were prohibited from participating in dharnas or rallies or give speeches or show gestures that might ignite public unrest, after the charred body of Dr. Priyanka Reddy was found on the national highway in horrific Telengana rape case.
  4. To prevent possible riots, S.144 was imposed in several parts of Jaipur, Delhi and UP before the Ayodhya verdict was to be out.

Grounds of Section 144

Section 144 of Code can be imposed if the following grounds are fulfilled.

  • Annoyance
  • Human Injury
  • Disruption of public tranquility
  • Riot, Affray
  • Obstruction

The restrictions provided under Article 19(1) (a), (b), (c), (d) are reasonable and sufficient grounds and safeguards are provided for people getting affected under Section 144 of CrPC.

Landmark cases on Section 144

  1.  In Re: Ardeshir Phirozshaw … vs Unknown (1939) 

There was a censure by the British judge of the Bombay HC on the Chief Presidency Magistrate of Bombay because he had passed an illegal order: It was stated: “A Magistrate acting under Section 144 may no doubt restrict liberty. But he should only do so if the facts clearly make such restriction necessary in the public interest, and he should not impose any restriction which goes beyond the requirements of the case.”

  •  Babulal Parate vs State of Maharashtra and Others(1961)

This case was the first major challenge to the law, adjudicated by a five judge bench, which observed that it was wrong to say that the remedy of a person aggrieved by an order under the section was illusory and hence, denied striking down of the law.

  • Manzur Hasan v Muhammad Zaman (1925)

This case laid down the guidelines regarding the imposition of S.144, which are as follows:

  • The power contained in this section should be used only for the purpose of achieving public tranquility and peace.
  •  The private rights of the public may be temporarily restricted and general interest of the public must be given more priority.
  • When Section 144 is under application, no dispute or right of civil nature will be open for adjudication in a proceeding.
  • The restriction should not only affect a minor section of a society; it should be for a larger section of the community.

Criticisms against Section 144

 “You have used a colonial-era law to suppress us and our voice,” remarked eminent historian Ramachandra Guha, when he was dragged away by the police while protesting against the CAA. In sync with this remark are some criticisms of Section 144, which are as follows:

  • Wide Executive Power: It is an enabling provision to book all those who constitute an “unlawful assembly” and engage in rioting. The executive officers, such as Executive Magistrate of any state or Union Territory of India, draws power from this section to prohibit the gathering of four or more people constituting an “unlawful assembly” or when they have to tackle an urgent case of “nuisance” or “apprehended danger” that could have the potential to disrupt public tranquility. It is based upon the foundational idea of ‘exceptional times ask for exceptional measures’. The Executive Magistrate can stop any group or individual from doing any particular act if he feels that it can disturb the ‘public tranquility’. The only criteria given for the judicial officer in imposing S.144 is that it must satisfy his conscience. Although there are provisions that can challenge such action, it cannot contend the subjective satisfaction of the judge if the judge has followed the guidelines prescribed.
  • Loosely Worded: The provision has been loosely worded which gives scope for misuse. Although it provides certain objectives such as “public tranquility” or “prevent damage to life and property” but it does not enlist what exactly the Executive Magistrate can or cannot do; he is allowed to do anything to achieve the said objectives. This can lead to arbitrary use of power.

Probable solutions

  • The Government should take measures and check there is no blanket imposition.
  • Checks and balances, judicial implementation and thorough reviews are required.
  • Right to peaceful dissent with public order is needed to be ensured too.

Similar laws in other countries

Bangladesh: Similar to the provision in Indian Code of Criminal Procedure, S.144 contained in the Bangladesh’s Criminal Procedure Code too talks about the prohibition of ‘unlawful assembly’, that is, gathering of four or more people, organizing of public meetings, and carrying of weapons or firearms. This Section can be imposed for up to 2 months.

The Magistrate is empowered by this section to impose orders immediately in urgent cases of nuisance or apprehension of danger. However, in 1976 after the introduction of Dhaka Metropolitan Police, the Section is no longer being imposed in metropolitan areas of Bangladesh.

Canada: Unlawful assemblies and riots which have the potential to disturb the public order and generate fear or apprehension of danger in the minds of the people are an offence under Part II of the Canadian Criminal Code.

Hong Kong: The Public Order Ordinance has defined the “unlawful assembly” under Section 18 as “an assembly of three or more people conducting themselves in a disorderly, intimidating, insulting or provocative manner intended or likely to cause a person reasonably to fear that the people so assembled will conduct a breach of the peace or will by such conduct provoke other persons to commit a breach of the peace”.

Those who are found to be a part of an unlawful assembly can be punished with imprisonment for up to 5 years or have to pay a fine of HK $5000 and imprisonment up to 2 years if convicted.

Conclusion

In a democratic country like India, it is our fundamental right to dissent, which was also described as a safety valve of democracy in Bhima Koregaon case by Justice D.Y. Chandrachud. Of course, dissent which turns violent cannot be termed as dissent but as an offence and therefore needs curbing. However, it also has to be noted that S.144 offers a wide scope for misuse of power.

Therefore, it has to be amended to ensure that it is imposed in an area where there is actual apprehension of nuisance and danger to public peace and tranquility. At the end, it should be reminded to the people that peace is the reward and the victory for all.

Authors: Ananya Panda from National Law University, Odisha and Jivantika Gulati from Army Institute of Law, Mohali.

Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.

Unnao: The legal provisions involved

Reading time: 6-8 minutes.

Rape is a brutal, heinous and odious crime which is often used by the offenders to establish their dominance, satisfy their ego and lust. It is a disgrace on this society to see offenders committing the act of rape and going unnoticed, especially and specifically, if such offender is a person with power.

However, in the present case, the Additional District Judge Dharmesh Sharma, Tis Hazari Court convicted the Uttar Pradesh MLA, Kuldeep Singh Sengar, in the infamous Unnao rape case.

Background in brief:

The victim in the present case stated that she had been raped on 8th June, 2017 at the residence of the accused-convict, Kuldeep Singh Sengar who was a member of the Bhartiya Janata Party (BJP) then and a Member of Legislative Assembly (MLA) of Uttar Pradesh from Unnao constituency.

The victim stated that she had gone to the accused-convict’s house to seek employment where she was raped. When no action was taken, the victim had stated the same in a letter to the Chief Minister of Uttar Pradesh on 17th August, 2017.

Much to her disappointment, neither any action was taken nor was her complaint acknowledged, which led to the victim trying to immolate herself in front of the CM’s residence. This lead to public attention which turned into an outrage in no time. In the meantime, the father of the victim was falsely accused and put in judicial custody.

He died of injuries from the assault by supporters of the accused-convict. It was only when the victim’s father died and she tried to immolate herself, the FIR was registered against the accused-convict, Sengar.

Furthermore, on July 28, the victim’s car was hit by a truck, the victim and her lawyer suffered injuries while her two aunts died and the family suspected foul play. As a result, the Supreme Court of India transferred all 5 cases related to the Unnao Case from a Lucknow Court to the Tis Hazari Court in Delhi.

Current development:

On 16th December 2019, the Tis Hazari Court, Delhi convicted Kuldeep Singh Sengar of rape under Section 375 of the Indian Penal Code, 1860 (herein referred to as ‘IPC’) and Section 5(c) of the Prevention of Children from Sexual Offences Act, 2012 (herein referred to as ‘POCSO Act’).

“The testimony of the survivor (PW-10) has been unblemished, truthful and has been proved to be of ‘sterling quality’ to arrive at a conclusion that she was sexually assaulted by Kuldeep Singh Sengar at his evidence at Village Makhi on 04.06.2017”, the judge observed.

The case was heard on a day-to-day basis. The Court had also framed other charges against the convict and other accused in the other four cases, which are, (i) framing of victim’s father in illegal firearms’ case, (ii) victim’s father’s death in judicial custody, (iii) conspiracy of the convict and other accused in the accident of July 28, lastly (iv) a separate gang rape case of the victim.

The charges:

The relevant sections that form the present case are Section 375 of IPC which deals with the offence of rape and Section 376 of IPC which deals with the punishment of rape. In addition to this, Section 5 and 6 of POCSO Act have proved to be relevant as the victim was a minor when the horrendous act was committed. Section 5 relates to the ‘Aggravated Penetrative Sexual Assault’ while Section 6 states the punishment for the same.

The court, in the present case, observed that the investigation had not taken place according to the provisions of POCSO Act, where it is clearly mandated by the relevant Section 24 that an investigation must be conducted by a woman officer.

Furthermore, the Court severely criticised the Central Bureau of Investigation (CBI) for taking over a year to file the charge sheet. Additionally, the Court further slammed the CBI for ‘leaking’ information and non-examination of data from the convict’s mobile phone.

The Court also observed that a delay of over 2 months in reporting of the said crime was satisfactorily explained by the complainant as she was threatened and menaced by the convict and his supporters.

The Court further observed, “this investigation has suffered from patriarchal approach or inherent outlook to brush the issues of sexual violence against children under the carpet apart from exhibiting lack of sensitivity and humane approach”.

The judge stated in the end that “there is nothing wrong with letter and spirit of POCSO Act”.

Quantum of punishment:

On 20th December 2019, the Delhi Court sentenced the convict, Kuldeep Singh Sengar, to undergo imprisonment for life for the remainder of his natural biological time and pay a fine of rupees 25,00,000/- (Rupees Twenty Five Lakh only) under section 376(2) of IPC.

Out of such amount, rupees 10,00,000 (10 Lakh) shall be paid to the victim as compensation and the remaining 15,00,000 (15 Lakh) to the prosecution as costs. In any case, if the fine is not paid within a period of one month, the same shall be recovered as land revenue arrears by the State of Uttar Pradesh as stated under Section 421 of Code of Criminal Procedure, 1974 (CrPC).

In addition to this, the CBI has been directed to give the victim and her family the necessary protection required.

During the hearing on quantum of punishment, the prosecution asked for maximum punishment while the convict based his arguments on the fact that he has a daughter of marriageable age and that he has worked for the welfare of the society and public being a four-time MLA.

Considering the contentions and arguments, the Court rightly observed the facts and evidences and awarded a just punishment.

Conclusion:

The present case is one where the power of the accused-convict put many hurdles to seek justice, however, the ends were met after a series of mistakes and events. It can be concluded that we still live in a society that is burdened by the power of the politicians and wealthy where the poor and the minorities in our society are scared, threatened and menaced.

When one raises their voice against such a powerful section of the society, they are met with obstacles to ruin their morale and will to perform a good deed. The stigma of patriarchy and misogyny is prevalent in the society that lead to such ferocious crimes against women and they often go unnoticed.

Therefore, the case at hand was a perfect start to deal with such stigmas and make the power-holders realize that nobody is above the law.

Author: Dakshi Khatri from Symbiosis Law School, Pune.

Editor: Farsana Sadiq from Faculty of Law, Jamia Millia Islamia.