What Is Yogi Govt’s Property Damage Ordinance for and Is it Legal?

From allowing ex parte hearings, to legitimising name and shame hoardings, here’s what the UP ordinance says.

Days after Supreme Court observed that the UP government had no authority in law to put up posters of people it had accused of causing damage to public property during anti-CAA protests, the Yogi Adityanath-led administration has sought to legitimise its actions – and the entire process of demanding compensation from such persons – through a new ordinance.

The Uttar Pradesh Recovery of Damages to Public and Private Property Ordinance 2020 was promulgated on 15 March by the Governor of UP Anandiben Patel.

The main purpose of the ordinance is stated to be the establishment of a claims tribunal to investigate the damages caused to public and private property during protests, riots, etc, and award compensation to the owners of the property. The ordinance allows this to be done ex parte, ie, without hearing the person accused of causing the damage, in certain circumstances.

The ordinance has been promulgated one day before the UP administration was supposed to file a report in the Allahabad High Court setting out whether it had complied with the high court’s order on 9 March to take down the ‘name and shame’ banners it had put up in Lucknow, as these violated the Right to Privacy and had no basis in law.

There appear to be several grounds on which to challenge the ordinance in the high court or Supreme Court, including ambiguity in definitions, the inclusion of ‘name and shame’ provisions that violate the Right to Privacy, and unconstitutional restrictions on appeals.

Why Has UP Government Passed This Ordinance?

Since December 2019, the UP government has been sending notices to people whom they allege took part in the anti-CAA protests where violence erupted in the state, and demanded these protesters pay compensation for property damage. The notices threaten to attach their property if they do not do so.

The legality of these notices has been questioned, as the UP government had not passed any law allowing this.

The administration claimed this was pursuant to judgments of the Supreme Court in 2009 and the Allahabad High Court in 2010, but even this was dubious, as demanding compensation from people who have not been convicted of any crime goes further than what the apex court had suggested in the judgment cited by them.

This judgment also required the assessment of a claims commission headed by a retired judge, which had to establish a nexus between the accused person and the violence.

The Allahabad High Court has, in fact, stayed several of these compensation notices, and observed that the Supreme Court is hearing a challenge to the legality of this system.

The new ordinance appears to be a way of ensuring such compensation notices are considered legal, by putting a law in place to allow them. The ordinance also allows the publication of names, photographs and addresses of people from whom the compensation is being claimed, which appears to be an attempt to legitimise the banners put up in Lucknow already – which the Allahabad High Court had ordered needed to be removed by 16 March.

Although the Supreme Court has referred the Yogi government’s appeal against the high court decision to a larger bench, it had not stayed the order for removal of the banners – it may now attempt to use this ordinance to justify keeping them up and defying the high court’s directives.

What Does the Ordinance Do?

The ordinance establishes a ‘Claims Tribunal’ which will investigate damage caused to public and private property during riots, hartals, bandhs, public processions, protests, etc, and award compensation to the owner who has sustained the damage.

The compensation is to be taken from the person or persons responsible for causing the damage.

COMPOSITION OF CLAIMS TRIBUNALS

• The state government will establish Claims Tribunals in different parts of UP to adjudicate on the claims.
• Each Tribunal will consist of at least two members (with one as Chairman), with the state government having the power to appoint as many members as it thinks fit.
• Only retired district judges and administrative officers of the rank of Additional Commissioner can be appointed as members of the Tribunals – and only the retired judges are eligible to be Chairman.

POWERS AND FUNCTIONS OF CLAIMS TRIBUNALS

• The Claims Tribunals have sweeping powers to investigate the damages and decide who is liable to pay for them – the same as a regular Civil Court for taking evidence on oath, getting witnesses to attend, and ordering the collection of all relevant documents and material for deciding matters before them.
• To estimate the damages and investigate liability, the Tribunal can appoint a Claims Commissioner. They can also appoint Assessors who are technically qualified to assess such damage in each district, to assist the Claims Commissioner.
• The Claims Commissioner and Assessor can get the Tribunal to pass an order summoning all relevant evidence, including existing video or other recordings from private and public sources “to pinpoint the damage and establish nexus with the perpetrators of the damage.”
• The Claims Commissioner is to make a report to the Tribunals within three months about their findings, though this time can be extended by the relevant Tribunal.
• The Claims Tribunal will then decide who is liable to pay for the damage, after conducting a hearing, in which it will allow the people accused of damaging property to submit written statements and present their case in person.

FILING OF COMPLAINTS

• For Damage to Public Property: After receiving a report from the relevant circle officer of the police (based on FIRs and other information) about a violent incident, the District Magistrate or Commissioner of Police or Head of Office (of the government building) is required to file claims before the Claims Tribunals for compensation of damage.
• For Damage to Private Property: After receiving a report from the concerned SHO or SO of the police about the violence in question, private property owners will need to file claims with the Claims Tribunal themselves.
• Claims for compensation have to be filed within three months of the date of the when the property was damaged, though the Tribunal can condone a further delay of 30 days.

What is the Procedure to be Followed to Assess Claims?

WHO IS LIABLE FOR COMPENSATION UNDER THE ORDINANCE?

• The person filing the claim can list as respondents, any persons who, to their knowledge, “had exhorted, instigated or committed” the damage to the property. These terms are not defined in the ordinance.
• The wording of the ordinance is not entirely clear on this point, but it appears that only those people who are named in the relevant police report can be named as respondents.
• After conducting its hearing and establishing “the nexus with the event that precipitated the damage”, the Tribunal will apply principles of absolute liability to assess damage and liability of respondents. This means that they will not be able to claim any defences as long as it is shown that they were involved in an event which led to the violence.
• The Tribunal will affix liability on whoever committed the actual crimes that caused damage, as well as those who instigated or incited it. Again, there is no definition of these terms in the ordinance.

PROCEDURE FOR HEARING

• The Claims Tribunal will need to send a copy of the application/claim to the respondents and a notice of the day on which it will conduct a hearing.
• The respondents have to file written statements with the Claims Tribunal by the date of the first hearing, or after, within 30 days of receiving the Tribunal’s notice.
• The Claims Tribunal shall conduct the hearing ex parte ie, without hearing the respondent’s side – if the respondent fails to appear for the hearing.

If any respondents fail to appear before the Tribunal, it can attach their property, and direct the authorities to publish their names, addresses and photographs with a warning to the public not to purchase any property of the respondents. This is of course, the backdoor way in which the UP government is trying to legitimise its idea of putting up hoardings in Lucknow and other cities with these personal details.

• Section 18 of the ordinance seems to indicate that respondents will not be allowed to have a lawyer represent them unless the Claims Tribunal allows this in its discretion.
• The Tribunal is supposed to follow principles of natural justice, and record whatever evidence is required to arrive at its conclusions.
• When it passes an order, it has to record the reasons for its findings, specify the amount of compensation to be paid to the owner of the damaged property and who exactly is to receive the compensation amount.

PAYMENT OF COMPENSATION & ATTACHMENT OF PROPERTY

• The amount of compensation is to be at least the market value of the property damaged on the day of the incident, though in addition, the Tribunal can order ‘Exemplary Damages’ of upto double the amount of compensation to be paid.
• The total damages will not just include the damage caused to public and private property, but also the cost of the actions by the authorities and the police to try and prevent/deal with the violence.
• As soon as the order of recovery for damage is passed, the property of those found liable is to be attached by the authorities.

Again, the ordinance provides for a ‘name and shame’ system here, as authorities are directed to publish the respondents’ names, addresses and photographs warning the public not to purchase the property attached.

Retrospectivity and Legality

Section 22 of the ordinance says that all orders passed by the Claims Tribunals will be final, and cannot be appealed before any court. It is unclear how this could possibly be legal, as the Supreme Court in numerous cases has held that the jurisdiction of the high courts and the Supreme Court cannot be taken away by law.

The Allahabad High Court has superintendence over all tribunals set up in UP under Article 227 of the Constitution, and so it would retain rights to hear matters relating to these Claims Tribunals. The ordinance cannot also take away the right to file writ petitions challenging the functioning of the tribunals if applicable, before the Supreme Court and Allahabad High Court.

While the ordinance does not specifically say it is retrospective, the provision to file claims within three months of incidents could allow the UP government to send out fresh notices under this ordinance to people they allege are responsible for damage to property during the anti-CAA protests. These would operate separately from existing notices or criminal cases.

There is also a significant problem with the nature of the ordinance: it is drafted to look like it creates civil liability for compensation, with the Tribunal operating with the powers of a civil court (in which case it can operate retrospectively). However, in effect, it appears to be creating a criminal process and punishing people like a criminal court (in which case it cannot operate retrospectively).

The vagueness of the concept of establishing a ‘nexus with the event that precipitated the damage’ is what creates this confusion, as does the provision for attachment of property the moment the Tribunal passes its order, without even waiting to see if the respondent pays up.

Another problem with the legality of the ordinance that sticks out is the name and shame provision. In regular cases for damages and compensation, such things are not allowed unless the respondent is absconding or fails to pay the amount. Even there, addresses and photographs aren’t necessarily made public.

Many of the observations by Allahabad Chief Justice Govind Mathur about how such banners would violate the Right to Privacy apply even if there is an ordinance in place, including the lack of any need for such an action, and its lack of proportionality.

Finally, there are serious concerns to be raised about representation of the respondents and their right to be heard. Not only are they not guaranteed the right to have a lawyer represent them (itself a significant problem), the proceedings can also proceed ex parte against them.

This is a problem because many people targeted by this ordinance may be in jail at the time when the hearing by the Claims Tribunal is to take place, and so may have no choice but to miss it, with the ordinance providing no protection if this happens.

This was, in fact, what happened to activist Deepak Kabir, one of the 57 people whose details were put up on hoardings in Lucknow. He told The Quint that he had been unable to present his case to the authorities who had sent him a notice for compensation because he had been arrested for his alleged involvement, and only got bail afterwards.

All these issues should provide strong grounds to challenge the ordinance in the Allahabad High Court, or even the Supreme Court of India.