Action of UP authorities against anti-CAA agitators is illegal: Markandey Katju

The action of Uttar Pradesh (UP) authorities to seal and attach properties of “rioters” during the anti-CAA protests is “illegal”, former Supreme Court judge Justice (Retd) Markandey Katju has said, while also raising questions over the role of the apex court in impartially discharging its duties.

In a long Facebook post, Katju explained that Section 147 of the Indian Penal Code (IPC), under which the protesters have been booked by the police, has no provision for immediate sealing or confiscating the properties of the accused by an executive authority, such as the District Magistrate or SDM.

“So while I have no sympathy with those who rioted and damaged property in the recent agitations against the Citizens Amendment Act (CAA) in towns in UP, in my opinion the action of the UP authorities is wholly illegal,” Katju wrote.

“Section 147 of the IPC states ‘Whoever is guilty of rioting shall be punished with imprisonment of either description, which may extend to two years or with fine or with both’. There is no legal provision for immediate sealing or confiscating the property of the alleged rioters, and that too without holding a trial in which the accused get an opportunity of putting up their defence with the assistance of counsel in accordance with the provisions of the Criminal Procedure Code,” he added.

The former Supreme Court judge said that rioters who damage property can certainly be made to pay for it as a fine contemplated by section 147 IPC, but that can only be done “legally only after a trial, in which they are given an opportunity of hearing, and by a court order, not by an order of an executive authority”.

In Muzaffarnagar, the authorities sealed 67 shops, mainly of Muslims, after accusing them of rioting during the anti-CAA protests on December 20. Chief Minister Yogi Adityanath had said that “revenge” would be taken from rioters and the cost of the damage to the public property would be recovered from them.

The UP authorities have sent notices to 66 persons for recovery caused to the public property during the protests, and the list of damaged “public property” includes the broken batons, helmets and spent tear gas cartridges used to quell the mob.

Katju said that this action of the authorities is “wholly illegal” since no trial was held of the accused and there is “no court order to do so”.

“It seems that the UP executive authorities have become a law unto themselves. One is reminded of the Enabling Act of March 1933 passed by the German Reichstag (the German Parliament) which enabled the Hitler government to make laws without approval of the Reichstag, and even inconsistent with the Weimar Constitution,” the jurist wrote.

He underlined that if this “unlawful trend” which is creeping into India so brazenly is not stopped by the Indian judiciary, the “Nazi era is soon coming in India too”.

“But unfortunately the Indian Supreme Court, instead of acting as a guardian of the Constitution and the fundamental rights of the people, has lately been behaving like Bheeshma Pitamah who closed his eyes when Draupadi was being publicly stripped, as can be seen from its disgraceful Ayodhya verdict, its shameful treatment of Justice Kureshi, its refusal to protect the democratic rights of the Kashmiri people, and its refusal to apply the Brandenburg test to quash the criminal proceedings against the Bhima Koregaon accused,” Katju said.