The Supreme Court on Friday ordered the Uttar Pradesh government to refund damages recovered from the persons accused of "destroying public property" during protests against the Citizenship (Amendment) Act (CAA).
The assets recovered by the State, according to the government’s own oral assertion in court, are worth “some crores”.
The blow came shortly after the State, on the backfoot days after being accused by the apex court of being the "complainant, adjudicator and prosecutor", informed a Bench of Justices D.Y. Chandrachud and Surya Kant that it had withdrawn show-cause notices issued by Additional District Magistrates since December 2019 in 274 cases of "alleged destruction of public properties" and subsequent proceedings.
Some of these people were well over 90 years of age and included women, students and activists. They were accused of vandalising public property while participating in protests held nationwide against an amendment based on religion in the citizenship law.
Claims tribunal
The Uttar Pradesh Additional Advocate General, senior advocate Garima Prashad, said the cases would now be referred to a claims tribunal set up under the newly enacted Uttar Pradesh Recovery of Damages to Public and Private Property Act of 2020 for fresh adjudication.
"The basis for ordering refund is the withdrawal of show-cause notices... As of now, all the plain consequences of the withdrawal of the notices should follow. You can move under the new Act... We have to follow yardsticks of our own constitutional jurisprudence," Justice Chandrachud explained the refund order to the U.P. side.
The court highlighted in its order that since the show-cause notices had been withdrawn, "there shall be a refund of any recoveries which have been made in the meantime. This will however be without prejudice to action that may be warranted in terms of proceedings before and the decision of claims tribunal at a subsequent stage".
Plea for status quo
The State urged the court to invoke its extraordinary powers to order status quo, saying the properties could remain as "security" before the tribunal till a final decision was taken on their owners' culpability.
"Otherwise a wrong message will go out to the public that the damages were refunded as the entire process [under the show cause notices] was illegal and no such recoveries could have been made by the state... Have some faith in the state... The State will have to release control over these properties!" Ms. Prashad pleaded.
But the court remained firm. "When citizens' properties have been attached, and the government orders pursuant to which the attachment has been levied have been withdrawn, can we say the attachment must still continue notwithstanding the withdrawal of the orders? Once you have taken the fair stand to recall your orders, we cannot says the attachment will continue," Justice Chandrachud told Ms. Prashad.
The Bench said this was not a case of "unjust enrichment" in which the court denied refund even though the State had wrongly attached properties.
Advocate Nilofar Khan, for petitioner Parwaiz Arif Titu, said even "rickshaw pullers, vegetable sellers and chicken shop owners were victimised and charged penalty... They had to sell their carts to pay the damages to the State".
Model Code of Conduct
When the court did not budge, the State, which is in the middle of crucial Assembly elections, changed tack to argue that the Model Code of Conduct was in place and there would be "difficulties" to implement the refund.
"What difficulties? The Model Code of Conduct does not prevent you from enforcing the law. The Model Code of Conduct does not prevent you from implementing a judgment of the Supreme Court," Justice Chandrachud replied.
Ms. Prashad said there had not been a single incident of destruction of property in the past two years.
"Ms. Prashad, there is a very important constitutional principle here... All deterrence against evasion of law has to be provided within the four corners of law. There can't be any deterrence which lies outside the fold of law. It is as simple as that," Justice Chandrachud reacted.
Justice Kant said the court was not stopping the State from seeking relief in the claims tribunal. "We have no doubts about the power of the State, ability of the State, the competence of the State. As soon as the claims tribunal holds anyone responsible for damages, we are quite sure you will issue the lawful process and recover damages... Tomorrow, the tribunal could even increase or decrease the damages," he observed.
Ms. Prashad pleaded that the State had come with "clean hands" before the court. It had withdrawn the show-cause notices. The issue of refund ought to be left to the tribunal now.
‘Follow due process of law’
"We have not stopped you from asking the tribunal. We are only telling you to follow the due process of law. If you establish your case in the tribunal, you can pursue the remedies in accordance with law," Justice Chandrachud reiterated.
The State said the apex court order for refund would "frustrate" the 2020 Act.
Justice Kant responded, "No, the law is not frustrated. You have brought a new law under which you will appoint competent people to the claims tribunal which will decide the case immediately".
The court disposed of the case.
