On Thursday, 6 February, the district authorities in UP’s Aligarh started issuing notices to the people sitting on an anti-CAA dharna in the city, in which they warned them that if they cannot explain why they are violating prohibitory orders in force, the authorities will begin attaching their property.
“If they do not give a satisfactory reply to the notice within seven days, legal action will be taken against them under relevant sections of the Indian Penal Code.”City Magistrate Vineet Kumar Singh
Like many places around the country, prohibitory orders under Section 144 of the Code of Criminal Procedure (CrPC) have been put in place by local authorities in Aligarh, in response to the protests against the Citizenship (Amendment) Act and the potential nationwide National Register of Citizens (NRC).
Violation of such a prohibitory order is a criminal offence under Section 188 of the Indian Penal Code (IPC).
Depending on the content of the prohibitory orders – which can include restrictions on movement, gatherings or protests of any form – even being a part of a peaceful protest can be considered a violation punishable under this provision of the IPC.
But can the property of those found violating a prohibitory order be attached by the authorities?
The protests in Aligarh have seen hundreds of women sitting on a peaceful protest – a dharna – near the Eidgah at the Delhi Gate area for the past week. There has been no rioting or violence or damage to public property during these protests.
This means that the authorities cannot try to use the same justification used in other parts of the state for attachment of the protesters’ property – that the protesters damaged public property and are hence, liable for the damage as per a Supreme Court judgment and subsequent order of the Allahabad High Court.
It should be noted that the basis for attachment even in those cases is suspect, as the Supreme Court judgment requires an actual conviction by the courts and an inquiry by a special commission, which has not happened in any of those cases either.
However, at least in those cases, the authorities have provided some basis on which they were trying to claim attachment, even if it wasn’t necessarily legal.
In the case of the notices sent to about 1,000 persons in Aligarh, however, that basis cannot apply. And there do not appear to be any other grounds on which these notices can rely.
Why the Aligarh Notices Are Illegal
First off, it is important to remember that the police, the authorities and even the courts cannot arbitrarily order attachment of a person’s property, even if they have been convicted of a crime. Article 300A of the Constitution clearly says,
“No person shall be deprived of his property save by authority of law.”
Therefore, if the Aligarh authorities want to attach the properties of protesters, they have to be able to point to some legislation or judgment of the courts which allows them to do this. As already mentioned, the judgments of the Supreme Court and the high courts don’t allow for this. And neither do any laws.
“There is no provision as per which property of protesters can be attached,” explains Supreme Court advocate Shadan Farasat. As a result, he says, “the entire action is without authority of law.”
Since the police are claiming the basis for these notices is the violation of prohibitory orders, we checked the text of Section 188 of the IPC to see if it allows for attachment of property.
However, under this section, the maximum punishment which can be imposed – where the violation of the orders leads to a riot or affray ie, actual violence – is six months’ imprisonment and a fine of Rs 1,000. When there is no violence, the punishment is up to one month in jail and a fine of Rs 200.
Note that this applies when the person has actually been convicted by a court of having committed the offence, and not at a preliminary stage.
Senior Supreme Court lawyer Vrinda Grover argues that the procedure resorted to by the UP authorities is “completely illegal and an affront to the rule of law”.
“Section 188 of the IPC does not accord any power to attach property for violation of a prohibitory order, nor does any other provision for that matter,” she says. Grover also points out that there is case law to argue that if people have gathered for democratic protests, this should not be considered a violation of Section 188:
“In fact, in a judgment of September 2018 in Jeevanandham vs State the Madurai Bench of the Madras High Court has passed a series of guidelines regarding cases under Section 188 IPC, and has categorically held that violation of prohibitory orders is not an offence under the IPC if people had gathered for democratic protests.”
In these circumstances, it appears the notices sent by the authorities in Aligarh are doubly wrong in law, as they have been sent before criminal proceedings have even begun, and they go far beyond the punishment the law allows. According to Grover, “The UP police is not enforcing the law of the land, rather, its actions are meant to please its political masters,” and these actions by them “reek of lawlessness”.
It seems clear, therefore, that the notices sent by the Aligarh authorities are illegal and, cannot be the basis for them to initiate any formalities for attachment of people’s property, even if they fail to provide a “satisfactory reply” to the notice within seven days.
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