LUCKNOW, Uttar Pradesh — “They were rude. They asked my son to take off his mask and took a photograph,” said retired IPS officer S.R. Darapuri, recalling the two visits made by Uttar Pradesh revenue officers and police officials to his house last week. The officers shot videos of Darapuri’s house and cars, and said the state would seize his property if he did not show up at the Tehsildar’s office.
But that’s not the 76-year-old’s biggest worry.
“I’m not afraid for myself but I’m afraid for my wife. She is totally bed-ridden and very seriously ill,” said Darapuri, who says that the Bharatiya Janata Party (BJP) government in UP is “bent” on arresting him and sealing his house in Lucknow.
“It will be impossible for us to take her anywhere,” he said about his wife.
Darapuri’s wife, 73-year-old Kanta Devi, has a heart problem, diabetes, as well as liver damage, and the septuagenarian says the repeated shocks are bad for her. Their grandchildren are also traumatised, he said.
Darapuri, who retired in 2003 after 34 years in the Indian Police Service, is one of the activists who was arrested by the UP Police in December for allegedly taking part in the violence that erupted after people tried protesting against the Narendra Modi government’s Citizenship Amendment Act (CAA) on 19 December in Lucknow.
According to numbers provided by the government to the Allahabad High Court in February, 22 people were killed in the violence over 20 and 21 December, and 833 people were arrested (561 were released on bail later). The protestors blamed the state and the police for the violence, while the police claimed the protestors were responsible.
While Darapuri, who retired as Inspector General of Police from the UP Police, says he was under house arrest and not even at the protest, he spent 18 days in jail before getting bail.
Over the past few months, the state government, led by Yogi Adityanath, has also been publicly shaming activists and sending recovery notices for alleged property damage to those accused in the violence, with the amounts often running into lakhs. Last week, a rickshaw owner accused of arson and vandalism became the first person to be re-arrested for not paying a recovery amount of Rs 21.76 lakh.
The government has also been issuing ultimatums and sealing the properties of those accused in the violence, even though the legality of the orders has been challenged in court.
While the Allahabad high court has ordered a stay in recovery proceedings in two cases, the government is persisting in sending notices to others.
Lawyers say the government is forcing each person to obtain a stay order individually, which is impossible for those without the resources to fight the state. The situation has been worsened by the coronavirus pandemic, which has affected the normal functioning of the courts.
Notices under challenge
The first recovery notices went out over Christmas in Rampur, Sambhal, Bijnor and Gorakhpur. While the state government is yet to put out an overall figure for the estimated damage, the Lucknow administration has calculated overall damages of Rs 1.56 crore, and have sent notices to 57 people so far. People have received notices for amounts ranging from Rs 14 lakh to more than Rs 64 lakh.
The notices are based on a 2011 UP government order, when Mayawati’s Bahujan Samaj Party was in power. The order says the Additional District Magistrate (ADM) is the competent authority to take action under provisions of Prevention of Damages to Public Property Act, 1984. This government order rests on a single-judge Allahabad High Court ruling of December 2010 that allows the state government to assess and recover the damage done to public property during riots and protests.
But a petition filed in the Supreme Court in January challenged these notices on the ground that the 2010 High Court judgment is in violation of Supreme Court guidelines which only allow the High Court to assess and recover damages following large-scale violence, not the executive — in this case, the ADM who is issuing notices. The 2009 guidelines say the exercise has to be overseen by a retired high court or district judge in the capacity of a claims commissioner.
The petitioner, UP resident Parwaiz Arif Titu, also alleged that notices were sent “arbitrarily” to a dead man, to two bed-ridden persons in their nineties, and people who had not been booked for any crime. He said the UP government was taking revenge on the minority community because of the anti-CAA protests.
In February, the Allahabad High Court stayed the proceedings for recovery in a Kanpur-based case, and, in March, stayed the UP government from making the recovery in a Bijnor-based case on the ground that the Supreme Court was yet to rule on the legality of these notices and the matters would be decided accordingly.
But the Supreme Court had not stopped it from issuing recovery notices, the state government argued before the Allahabad High Court.
The High Court said that while the Supreme Court was hearing a Public Interest Litigation (PIL) challenging the legal premise of the notices, the case before it involved a person directly affected by the impugned order and issued the stay.
But the High Court’s rulings are specific to these two cases, and the UP government has continued to send recovery notices to others accused of damaging property in the December violence.
“Now, the government’s case is that everybody should obtain a stay order on their own, and if they don’t obtain a stay order on their own, we will impose recoveries. Now, everybody has to run to court. And many of these people are very very poor and they can’t even go to court,” said Jaideep Naraian Mathur, a senior advocate in Lucknow who is representing Sadaf Jafar, a former teacher and Congress member, who was also visited by revenue and police officials last week.
Mathur, a former Additional Advocate General of UP, says the situation has become worse due to the coronavirus pandemic.
“The working of the High Court is so limited, right now. Cases are being adjourned and coercive processes are being used against people,” said Mathur.
It is unclear how many stay petitions have been filed before the Allahabad High Court and in the Lucknow Bench of the High Court, but Mathur estimated at least four or five.
“All of us felt that because the High Court has intervened in one case, the government will be reasonable and hold everything in abeyance until the matter is decided. Then, coronavirus happened. But now that the recoveries have happened, and the Tehsildar has started visiting houses, we have to go to court,” he said.
Even before the BJP and Adityanath swept to power in Uttar Pradesh in 2017, Darapuri had established himself as a social activist not afraid to question the government of the day.
In 2013, Darapuri was a co-founder of a Uttar Pradesh-based party, the All India People’s Front (Radical), and contested the Lok Sabha elections in 2014 and 2019.
Speaking to HuffPost India’s Piyasree Dasgupta in 2018, Darapuri said that he was no fan of Mayawati’s BSP, but he believed that the BJP had made it worse for Dalits.
He maintains that he did not join the anti-CAA street protest on 19 December because the UP government had imposed a curfew in the city and placed him under house arrest.
His family recalls taking a photo of the retired police officer holding a placard that said “Save citizenship”, and posting it on Facebook.
But the police arrested him on 20 December and he received his first show cause notice for property damage while he was still lodged in the Lucknow central jail.
He was released on bail on 7 January. His photograph, name and address were posted on the now infamous “naming and shaming” hoardings the UP government put up in Lucknow on 5 March.
It was only after this that he learnt about a recovery order dated 17 February which made him liable for property damage worth Rs 64.37 lakh. He filed a writ petition to stay the 17 February order in the Lucknow bench of the Allahabad High Court in March, but due to the coronavirus lockdown, the first hearing was only held on 17 June.
Darapuri said the lawyer who appeared for the state government asked the court for 10 days to respond, but the very next day, the activist was served with the latest recovery order dated 12 June, which said that failure to comply could lead to sealing the house or arrest.
“They did this on 18 June even though the matter was sub judice,” he said.
On 18 June, Darapuri received R.C. Form 36 of the Revenue Code, which invoked Section 143 (3) of the code, and ordered him to pay Rs 64.37 lakh as damages within seven days or state his reasons for failing to do so. If not, his house could be sealed and he could be arrested.
But Darapuri’s lawyer Nitin Mishra notes that there is no Section 143 (3) in the Revenue Code, and R.C. Form 36 is sent pursuant to Section 141 (3) that gives a person 15 days — not seven — to respond.
“This renders the entire exercise void,” he said.
A perusal of the Revenue Code reveals that Mishra is right about the absence of Section 143 (3).
Another major discrepancy is that while 28 people including Darapuri, Congress member Jafar, and other activists in Lucknow, have been held accountable for Rs 64 lakh worth of damage to property around Parivartan Chowk in Lucknow, they have each individually received notices for the entire amount.
The UP government says it is operating under “joint and several liability”, but what this means, according to advocate Mathur, is that the UP government will collect the amount it has assessed and then leave it to the accused to blame and sue each other over the difference.
“This is completely bizarre,” said Mathur.
In addition to a petition seeking a stay on the 17 February recovery order, Darapuri said that he had challenged the 12 June demand order in the Lucknow Bench of the Allahabad High Court.
“This whole exercise is illegal. I will fight this in the courts,” he said.
‘A ridiculous ordinance’
The Uttar Pradesh Recovery of Damage to Public and Private Property Ordinance that Governor Anandiben Patel promulgated on 15 March allows for the setting up of a two-member claims tribunal comprising a retired district judge and an administrative officer of the rank of Additional Commissioner, who will assess the damage caused to public and private property during protests, processions and riots, and award compensation to the owner.
The ordinance also says that if respondents fail to appear before a tribunal, it will conduct the hearing in their absence, attach their property, and can publish their name, photo and address for the public not to purchase property from them.
“This is a ridiculous ordinance,” says Mathur, the Lucknow-based advocate.
Lawyers and activists fear the UP government will wield this ordinance retrospectively to cover the December violence.
In one petition filed on 17 March, a Lucknow-based collective of human rights lawyers and activists called Samvidhan Bachao, Desh Bachao Abhiyan says the the ordinance is “arbitrary” and “unconstitutional” because it allows the state to act against people against whom there is no prima facie evidence. The petition says laws for recovering property — Code of Criminal Procedure, 1973 and Prevention of Damage to Public Property Act, 1984 — already exist and the ordinance is in violation of the 2009 Supreme Court order cited earlier.
“It is unconstitutional as setting up of a tribunal with multiple members and functioning even with a single judicial member and several non-judicial members is not permissible in law as laid out by the Supreme Court in Rojer Mathew versus South Indian Bank Ltd,” the petition reads, referring to a 2019 judgment of the apex court. “The appointment of non judicial members on the tribunal is unconstitutional also because there is no special expertise required of non judicial members. Hence only tribunals with judges would be permissible if such tribunals were constitutional in the first place.”
Following the coronavirus lockdown that the Modi government announced on 25 March, only the second hearing on the matter was held on Monday, 6 July, with human rights lawyer Colin Gozalves appearing for the petitioner. The next hearing is scheduled for 10 July.
Another petition, filed on 17 March by an Allahabad-based advocate Shashank Shri Tripathi, said the Ordinance violated the fundamental rights guaranteed in Part 3 of the Constitution, the right to privacy, and was in contravention of the law laid down by the Supreme Court in Roger Mathew versus South Indian Bank Ltd on establishing tribunals.
When the ordinance was promulgated, Mathur, the advocate, said there was one view that the earlier government should have recalled the earlier notices and started the proceedings afresh, but instead, the government concluded the proceedings.
Referring to Section 28(2) of the Ordinance, Mathur said, “There is a provision that says if any action has been taken under government orders issued earlier then it will be deemed that the action has been taken under the ordinance. They will probably rely upon that to say the orders the ADM signed stand protected.”
‘Shameless’ but never taken down
Three days after the UP government put up “naming and shaming” hoardings with the names and addresses of people accused of damaging property in the December violence, the Allahabad High Court on 8 March took suo moto cognizance of the matter and described the move as “unwarranted interference in privacy of people”, a “shameless depiction,” and a “colorable exercise of powers by the Executive.”
The two-judge bench of Chief Justice Govind Mathur and Justice Ramesh Sinha found the banners to be in violation of the fundamental right to life and liberty, and ordered the government to take them down by 16 March.
In response to the UP government’s appeal in the Supreme Court, a two-judge bench said there was “no law” backing the move, but referred the matter to a three-judge bench, and refused to stay the High Court following an appeal by the UP government.
The UP government promulgated the ordinance with the naming and shaming provision on 15 March. The government missed its first compliance deadline on 16 March and asked for more time.
Ashma Izzat, a human rights lawyer in Lucknow, said some of the hoardings may have come down in storms over the past few months, but “the UP government never took them down.”
“I have never seen the kind of high handedness and unlawful things that are happening today,” said Darapuri. “The present regime doesn’t care for court orders and the law.”