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

UP govt is not the first one to have taken the ordinance route to create a law to suit its agenda, especially when such ordinance will immediately validate its ‘formerly’ unlawful acts.

UP govt

When the High Court and then even the Supreme Court refused to validate the ‘naming and shaming’ posters in absence of any legal sanction whatsoever, the UP government has gone ahead and availed of the next easy legal provision, the ordinance route. On Sunday, March 15, the Uttar Pradesh recovery of damage to public and private property ordinance 2020 was cleared in the cabinet meeting chaired by UP Chief Minister Yogi Adityanath.

Speaking to the media, UP cabinet minister and state government spokesperson Siddharth Nath Singh said, “Supreme Court (SC) in 2011 said that if a government or private property is damaged in any demonstration or protest, stringent law should be made for its prevention. Our government earlier issued an order but the SC, while hearing the anti-CAA hoardings matter, asked us under which law such action has been taken. Based on that we have brought an ordinance which will subsequently be converted into a law.”

The ordinance was passed soon after the Supreme Court referred the matter to a larger bench for consideration while also deciding not to stay the Allahabad High Court’s decision which had asked UP administration to take down the doxing posters in question and to file a compliance report by March 16. The vacation bench of justices U U Lalit and Aniruddha Bose told the Uttar Pradesh government that there is “no law” which backs its action of putting up posters on roadsides with details of those accused of vandalism during anti-CAA protests in Lucknow.

The apex court, while referring the appeal of the state government to a larger three-judge bench next week on the ground that it required “further elaboration and consideration”, put a poser saying whether the fundamental right to privacy of alleged protesters can be waived by the state by “castigating them for all times” to come.

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”. 

What is an ordinance?

Ordinance is the kind of subordinate legislation that gives the executive, in this case the Governor of the state, the power to pass a legislation when the Legislative Assembly is not in session. This ordinance, which is a form of subordinate legislation then has to be passed by the Assembly in its next session within 6 weeks of reassembly, failing which the ordinance ceases to operate as a law. The provision empowering the Governor of state to pass an ordinance lies under Article 213 of the Indian Constitution. The provision reads as follows:

“213. (1) If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require…”

The ordinance has the same force as a legislation passed by the Assembly or if there is a Legislative Council, then both the houses of the Assembly; until the next session of the Assembly where its fate gets decided.

The Central and various state governments have from time to time used (or misused) the ordinance route to have their way when the houses are not in session. The key words in the provision for promulgating an ordinance are “circumstances exist which render it necessary for him to take immediate action”.

Ordinances’ encounters with courts of law

Ordinances have been challenged in the courts of law previously. In RC Cooper vs. Union of India (1970) the Supreme Court, while examining the constitutionality of the Banking Companies (Acquisition of Undertakings) Ordinance, 1969 which sought to nationalise 14 of India’s largest commercial banks, held that the President’s decision could be challenged on the grounds that ‘immediate action’ was not required; and the Ordinance had been passed primarily to by-pass debate and discussion in the legislature.

Promulgating an ordinance seems like the right practice when it becomes expedient to do so and on paper it seems legitimate too since it needs to be approved by the legislature in its next session. But, the ordinance route is not as simple since governments have found ways to circumvent this provision and have taken the ‘re-promulgation’ route. It was argued in DC Wadhwa vs. State of Bihar (1987) the legislative power of the executive to promulgate Ordinances is to be used in exceptional circumstances and not as a substitute for the law making power of the legislature.  Here, the court was examining a case where a state government (under the authority of the Governor) continued to re-promulgate ordinances, that is, it repeatedly issued new Ordinances to replace the old ones, instead of laying them before the state legislature.  A total of 259 Ordinances were re-promulgated, some of them for as long as 14 years.  The Supreme Court argued that if Ordinance making was made a usual practice, creating an ‘Ordinance raj’ the courts could strike down re-promulgated Ordinances.

UP government and ordinances

In June last year, the UP government had passed an ordinance called ‘Uttar Pradesh Private Universities Ordinance (UPPO) 2019’ directed towards private universities in the state as per which, they were required to ensure that their campuses will not be allowed to be used for any ‘anti-national’ activity. The ordinance said that universities must act to inculcate “desh bhakti (patriotism)” in its students. It also said that universities must “preserve the secular, democratic fabric and aspire for universal brotherhood and tolerance”.

Jurisprudence dictates that ordinances are to be put into effect only when the circumstances deem it necessary that a law be passed when the legislature is not in session. Ordinance which gives the Executive legislative power is an extraordinary measure, since India strictly practices separation of powers between its three main pillars, namely, Legislature, Executive and Judiciary. Clearly, since the administration has already issued recovery notices to people allegedly involved in violence during anti-CAA protests in Uttar Pradesh, the promulgation of this ordinance is questionable. Clearly, this ordinance has been brought in place to sidestep the Allahabad High Court’s decision which was an outcome of a suo-moto PIL heard on a Sunday. The fact that the ordinance seeks to give unbridled powers to a tribunal, which may be seen as defying principles of natural justice, is proof of its misuse.

The apex court still has the ball in its court since the matter has been referred to a larger bench for consideration but meanwhile the ordinance will fill up the legal lacuna that was proving as a hindrance to the state government and will help it fulfil its agenda of recovering damages in an arbitrary manner.

The ordinance may be read here


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