Legal analysis: Confiscation of property over vandalism

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Recently the Parliament passed the Citizenship Amendment Bill, 2019 which led to widespread protests across the country as many stated that the new act was unconstitutional and discriminatory since it excluded Muslims from getting Indian citizenship.

Across the country many university and college students were protesting against the Citizenship amendment bill. Such protests were carried out by students of Jamia Millia Islamia University, Aligarh Muslim University and various other universities across the country.

According to police reports, these protests turned violent and the police retaliated by entering the campus and attacking the students. This led to a widespread movement against the police violence across the country.

The State of Uttar Pradesh had many such protests which led to the mass destruction of public property. The police claimed that public property was destroyed by the protestors and the protestors claim the police for the destruction of public property.

The government started confiscating the property of the protestors across the state to make up for the cost of public property that was lost due to vandalism. The police in the city of Bijnor issued notices to 43 people to pay for the loss caused to public and government property.

The district magistrate of Bijnor said ““Actions are being taken and will be taken only on the basis of strong evidence. I want to assure that no action will be taken against those who were not involved.” The reason stated by the government is that the protestors do not have the right to destroy public property.

Laws under which the state government can/cannot confiscate public property:

The Prevention of Damage to Public Property Act, 1984 deals with the procedure and the rules to be followed when a public property is destroyed due to the act of an individual or a group of people. The Act provides that

Whoever commits mischief by doing any act in respect of any public property, other than public property of the nature referred to in sub-section (2), shall be punished with imprisonment for a term which may extend to five years and with fine.”

According to this Act, Public Property refers to any moveable or immoveable property which is managed or controlled by the central, state or local governing authorities. This Act clearly mentions that if the accused is found guilty then he can put in the prison and even be fined for his actions.

However, the Supreme Court in many decisions has clearly stated that this law is not sufficient and requires amendments in order to reduce the destruction of public property. The Apex Court took suo moto cognisance of this issue in the year 2007 and set up two committees of former Justice KT Thomas and Senior Counsel Fali Nariman to research and suggests changes required in the 1984 Act and the laws relating to damage to public property in general.

In a case, the Apex Court issued guidelines that should be followed in case of damage to public property is caused. These guidelines were based on the recommendation of the Thomas committee and the Nariman committee.

The recommendation of the Thomas committee was to reverse the burden of proof against the protestors. This meant that the prosecution was required to prove that public property had been damaged by an individual or a group of people. After this stage the burden of proof shifts to the accused to prove that he is not guilty.

The recommendation of the Nariman Committee was to extract the cost of damages. This recommendation was accepted by the court and they were of the opinion that the rioters would be liable for the damage to the public property. The Supreme Court issued guidelines to High Courts to take suo moto cognisance to investigate the damages that were caused to public property and award penalty to the rioters for mass destruction in public/government property.

The State could take away the property of the protestors under the recommendations and the guidelines of the Supreme Court. However, they need to follow the principle of natural justice and give notice to the people. Adverse action is only valid when prior notice is given. The people have the right to be heard when something as property is taken away by the government as it violates Article 21 of the Indian Constitution. Each individual has a right to property which cannot be taken away without the due process of law.

The public rejected this action of the Uttar Pradesh Government as it did not follow the due process of law. The recognition of people was not correct in many instances. People who had not gone for any protest were also issued with notice about confiscation of property. This leads to a very difficult situation as these people are not left with any option and have to give up their property in front of state power.  

Conclusion

The government’s action in Uttar Pradesh clearly shows that they implemented a correct law however they did not follow the procedure and the due process of law to do so. Right to property though been taken off as a fundamental right is still present in the constitution and clearly states that any persons property cannot be taken away without the due process of law. Thus the  government should follow the procedure required by law to implement the action to seize property.

Author: Nikhil Chainani from NALSAR, Hyderabad.

Editor: Tressa Maria Joseph from Symbiosis Law School, Hyderabad.

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