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UP’s 'Name and shame ordinance' against all canons of justice: PIL in Allahabad HC

This is the second PIL against this ordinance to be filed before the High Court

Sabrangindia 15 Jul 2020

UP’s 'Name and shame ordinance'

Allahabad High Court has received a Public Interest litigation (PIL) filed by two lawyers, a social activist and a journalist challenging the constitutional validity of the Uttar Pradesh Recovery of Damage To Public And Private Property Ordinance, 2020. The PIL seeks a writ declaring the ordinance as unconstitutional and void.

The PIL states that the ordinance is effectively redundant since the matter of prevention of damage to public property is already covered by The Prevention of Damages to Public Property Act, 1984 which provides provisions for punishment for the same and hence the ordinance is void to the extent of repugnancy under Article 254 of the Indian Constitution. The PIL further states that with regard to compensation as to public/private property also and punishment for offences such as rioting and mischief, are already provided for the Criminal Procedure Code and the Indian Penal Code, thus making it redundant to that extent as well. It further states, “The whole premise upon which the Ordinance is based, i.e., to curtail and stifle acts of violence at public places, is imaginary, sham and illusory, and the said Ordinance is sterile and manifestly arbitrary and deserves to be declared unconstitutional and void.”

The PIL also states that that ordinance is discriminatory as “it does not include private individual, natural person, Hindu Undivided Family (HUF) and joint family property within the definition of Private Property" and further is against secular and non-religious bodies, societies, trusts, firms, etc., without any rhyme or reason, as it uses the term ‘religious’ to refer to body, society, trust, waqf, firms. The PIL points out that the ordinance looks at damages through the prism of religion and hence is against the secular ethos of our Constitution and its basic structure.

Speaking about the Tribunals to be constituted under the Ordinance, the PIL states that “there is no intelligible differentia behind the constitution of a separate Tribunal under the said Ordinance, when all the requisite powers of dealing with the situation(s) are well within the domain of the Civil and the Criminal Courts, and as such no specific or defined class of offences has been made out for the Tribunal to be constituted to deal with… Thus, the impugned Ordinance is untenable in law, owing to having no intelligible differentia and as such being violative of Article 14, and being arbitrary, unconstitutional and void.”

The petitioners further state that the ordinance also violates principles of natural justice as it contains no provision whatsoever for setting aside the ex-parte order upon appearance and showing sufficient case for such non-appearance.

Further referring to name and shame provision which is seemingly the most problematic provision of the ordinance, the petitioners state that it is against all canons of justice. They further assert that under S. 13 and S. 19(2) the ordinance provides for publication of names, photographs and addresses of persons which is an unwarranted assault on the individual’s right to live with basic human dignity and the right to privacy and further is like an invitation to lynch.

Referring to the finality of the order of the Tribunals under the ordinance, the PIL states that “this would only compel aggrieved parties to approach the High Courts in the Writ Jurisdiction, thus, inviting a barrage of litigations from dissatisfied parties and increasing the multiplicity of proceedings which would do more harm than good.”

Precursor to the ordinance

The Allahabad High Court had taken suo moto cognizance of the action of the State of U.P. arbitrarily putting up name-and-shame banners of 50 and odd persons accused of vandalising the public and private properties and causing damages in full public view along major roadsides and in various public places, seeking compensation from such persons and confiscation of their property upon failure to pay the same. The court had directed removal of such things forthwith and further directed the State of U.P. not to place such name-and-shame banners on roadside or in other public places.

Aggrieved by this decision, the UP government approached the Supreme court whereby a two-judge refused to grant stay on the High Court order and referred the matter to a larger bench. Meanwhile, in utter haste, the Governor of UP formulated the ordinance which was passed and approved by the Cabinet earlier.

About the ordinance

On March 15, the Uttar Pradesh Recovery of Damage To Public And Private Property Ordinance 2020 was cleared in the cabinet meeting chaired by UP CM Adityanath in Lucknow. As per the ordinance, all the claims under the ordinance will be decided by Claims Tribunals to be set up and the decisions of these Tribunals are to be final and no civil court will have jurisdiction to entertain any questions on the claims. The ordinance, under section 13, also gives the government the right to publish names and personal details of individuals who have been served a notice to and have failed to appear before the Tribunal.

The ordinance grants wide and unbridled powers to claims tribunal for collecting compensation from people accused of vandalism, ex-parte which means the person will not be given a chance to be heard. The ordinance tries to make the orders of the tribunal binding by stating that the award of compensation made by it will be final and cannot be appealed before any civil court. It also allows forming multiple tribunals for a single event to ensure that the proceedings are closed “preferably within three months”. 

On March 18, a lawyer practising in Allahabad High Court, Shashank Tripathi filed a Public Interest Litigation  at the High Court against the ordinance urging the court to issue a writ or a direction declaring the ordinance ultra vires to the Constitution. The PIL stated that the ordinance talks about judicial activity, but without procedural and functional safeguard required by law. It further says the ordinance under question is in contradiction with the ordinance-making power of the state provided under Article 213 of Constitution. The PIL is pending hearing.

The PIL may be read here.

 

Related:

‘Naming & shaming’ instead of rule of law: UP recovery of damage to public & private property ordinance, 2020

PIL in Allahabad HC seeks stay on UP govt’s ordinance, calls it ultra vires to Constitution

Is UP's new Ordinance on recovery of damages an example of abuse of power?

 

UP’s 'Name and shame ordinance' against all canons of justice: PIL in Allahabad HC

This is the second PIL against this ordinance to be filed before the High Court

UP’s 'Name and shame ordinance'

Allahabad High Court has received a Public Interest litigation (PIL) filed by two lawyers, a social activist and a journalist challenging the constitutional validity of the Uttar Pradesh Recovery of Damage To Public And Private Property Ordinance, 2020. The PIL seeks a writ declaring the ordinance as unconstitutional and void.

The PIL states that the ordinance is effectively redundant since the matter of prevention of damage to public property is already covered by The Prevention of Damages to Public Property Act, 1984 which provides provisions for punishment for the same and hence the ordinance is void to the extent of repugnancy under Article 254 of the Indian Constitution. The PIL further states that with regard to compensation as to public/private property also and punishment for offences such as rioting and mischief, are already provided for the Criminal Procedure Code and the Indian Penal Code, thus making it redundant to that extent as well. It further states, “The whole premise upon which the Ordinance is based, i.e., to curtail and stifle acts of violence at public places, is imaginary, sham and illusory, and the said Ordinance is sterile and manifestly arbitrary and deserves to be declared unconstitutional and void.”

The PIL also states that that ordinance is discriminatory as “it does not include private individual, natural person, Hindu Undivided Family (HUF) and joint family property within the definition of Private Property" and further is against secular and non-religious bodies, societies, trusts, firms, etc., without any rhyme or reason, as it uses the term ‘religious’ to refer to body, society, trust, waqf, firms. The PIL points out that the ordinance looks at damages through the prism of religion and hence is against the secular ethos of our Constitution and its basic structure.

Speaking about the Tribunals to be constituted under the Ordinance, the PIL states that “there is no intelligible differentia behind the constitution of a separate Tribunal under the said Ordinance, when all the requisite powers of dealing with the situation(s) are well within the domain of the Civil and the Criminal Courts, and as such no specific or defined class of offences has been made out for the Tribunal to be constituted to deal with… Thus, the impugned Ordinance is untenable in law, owing to having no intelligible differentia and as such being violative of Article 14, and being arbitrary, unconstitutional and void.”

The petitioners further state that the ordinance also violates principles of natural justice as it contains no provision whatsoever for setting aside the ex-parte order upon appearance and showing sufficient case for such non-appearance.

Further referring to name and shame provision which is seemingly the most problematic provision of the ordinance, the petitioners state that it is against all canons of justice. They further assert that under S. 13 and S. 19(2) the ordinance provides for publication of names, photographs and addresses of persons which is an unwarranted assault on the individual’s right to live with basic human dignity and the right to privacy and further is like an invitation to lynch.

Referring to the finality of the order of the Tribunals under the ordinance, the PIL states that “this would only compel aggrieved parties to approach the High Courts in the Writ Jurisdiction, thus, inviting a barrage of litigations from dissatisfied parties and increasing the multiplicity of proceedings which would do more harm than good.”

Precursor to the ordinance

The Allahabad High Court had taken suo moto cognizance of the action of the State of U.P. arbitrarily putting up name-and-shame banners of 50 and odd persons accused of vandalising the public and private properties and causing damages in full public view along major roadsides and in various public places, seeking compensation from such persons and confiscation of their property upon failure to pay the same. The court had directed removal of such things forthwith and further directed the State of U.P. not to place such name-and-shame banners on roadside or in other public places.

Aggrieved by this decision, the UP government approached the Supreme court whereby a two-judge refused to grant stay on the High Court order and referred the matter to a larger bench. Meanwhile, in utter haste, the Governor of UP formulated the ordinance which was passed and approved by the Cabinet earlier.

About the ordinance

On March 15, the Uttar Pradesh Recovery of Damage To Public And Private Property Ordinance 2020 was cleared in the cabinet meeting chaired by UP CM Adityanath in Lucknow. As per the ordinance, all the claims under the ordinance will be decided by Claims Tribunals to be set up and the decisions of these Tribunals are to be final and no civil court will have jurisdiction to entertain any questions on the claims. The ordinance, under section 13, also gives the government the right to publish names and personal details of individuals who have been served a notice to and have failed to appear before the Tribunal.

The ordinance grants wide and unbridled powers to claims tribunal for collecting compensation from people accused of vandalism, ex-parte which means the person will not be given a chance to be heard. The ordinance tries to make the orders of the tribunal binding by stating that the award of compensation made by it will be final and cannot be appealed before any civil court. It also allows forming multiple tribunals for a single event to ensure that the proceedings are closed “preferably within three months”. 

On March 18, a lawyer practising in Allahabad High Court, Shashank Tripathi filed a Public Interest Litigation  at the High Court against the ordinance urging the court to issue a writ or a direction declaring the ordinance ultra vires to the Constitution. The PIL stated that the ordinance talks about judicial activity, but without procedural and functional safeguard required by law. It further says the ordinance under question is in contradiction with the ordinance-making power of the state provided under Article 213 of Constitution. The PIL is pending hearing.

The PIL may be read here.

 

Related:

‘Naming & shaming’ instead of rule of law: UP recovery of damage to public & private property ordinance, 2020

PIL in Allahabad HC seeks stay on UP govt’s ordinance, calls it ultra vires to Constitution

Is UP's new Ordinance on recovery of damages an example of abuse of power?

 

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