Plea In Allahabad HC Against UP's "Name-And-Shame" Ordinance [Read petition]

The petition has been filed by two practicing Advocates of the High Court along with a social activist and a journalist, stating that the Ordinance fails its objective of "de-escalation of violence".

"The impugned Ordinance in the Preamble, supra, professes to deal with 'acts of violence at public places and to control its persistence and escalation,' however, contains no provision apart from ones dealing with 'Recovery of damage to public or private property…," the plea states.

The impugned Ordinance was promulgated in March this year to establish a legal machinery for recovery of damages from the alleged wrongdoers, for destruction/damaging of public and private property, and also provides for publication of personal details.

The Petitioners, through Advocates Shashwat Anand and Ankur Azad, state that this field is already covered by the Prevention of Damages to Public Property Act, 1984, and that the impugned Ordinance is repugnant to the same, and as such is void to the extent of repugnancy under Article 254 of the Constitution.

It has been referred to as the "Name-and-Shame" Ordinance by the Petitioners inasmuch as Section 13 of the Ordinance prescribes for publication of an accused person's personal details, in case of his non-appearance before the Claims Tribunal.

"The Ordinance provides for publication of names, photographs and addresses of persons under S. 13 and S. 19(2), 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," the Petitioners assert.

The plea further agitates creation of the Claims Tribunal under the Act, on two grounds:

1. 1.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;
2. 2.Section 7 of the Ordinance stipulates that the members of the Tribunal will include officers of the Additional Commissioner rank. This gives an "undue opportunity" to the Executive to hold its dominance over the Claims Tribunal which is a substitute, or an alternative of Civil Court.

"S. 7(2) is designed in such a way so as to trench upon the field of the judiciary which is against the doctrine of separation of powers which is basic structure of our Constitution," the Petitioners have submitted.

Other grounds taken by the Petitioners include:

• The impugned 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" under Section 2(f);
• S. 2(f) uses the term 'religious' to refer to body, society, trust, waqf, firms, etc., which shows that the impugned Ordinance is further discriminatory against secular and nonreligious bodies, societies, trusts, firms, etc., without any rhyme or reason which is contrary to the provisions of Art. 14 of the Constitution;
• S. 8(7) of the impugned Ordinance confers discretionary power on the Tribunal to follow such summary procedure, "as it thinks fit";
• The impugned Ordinance contains no provision whatsoever for setting aside of an ex-parte order, upon subsequent appearance of the accused and showing of sufficient case for such non-appearance, and the same is violative of the principles of natural justice and the legal maxim of audi alteram partem;
• Section 21 of the impugned Ordinance, provides for "Absolute Liability" to be attracted in all cases "once the nexus with the event that precipitated the damage is established." This provision, inasmuch as it operates against 'unknown persons,' and 'a faceless mob,' without any guidelines and principles to fasten such liability, is arbitrary, misconceived and unwarranted in both law and fact;
• Application of absolute liability creates an "irrebuttable presumption", which is against the principle of natural justice and also against the Supreme Court judgment in the matter of In Re: Destruction of Public & Private Properties, (2009) 5 SCC 212, which laid down the application of "Strict Liability" in case of mob violence;
• Section 22 of the impugned Ordinance provides for finality of award and no further remedy of appeal against the same. It also does not provide for review/ recall of the awards or any order of the Claims Tribunal. This may invite a barrage of litigations from dissatisfied parties and increase the multiplicity of proceedings.

The Petitioners therefore seek that the Ordinance be declared as unconstitutional and void.

The plea has been drawn by Advocates Faiz Ahmad, Chintan Nirala, Devesh Saxena and Santosh Yadav.

Notably, the ordinance was promulgated on March 15, after the Allahabad HC came down on the UP administration for erecting banners in public places displaying the names, photographs and addresses of persons accused of committing violence during anti-CAA protests.

Advocate Shashank Shri Tripathi, who has also challenged the Ordinance in a separate writ petition, asserts that the Ordinance is an attempt to give "post-facto validity" to the recovery notices issued by adjudicating authorities to anti-CAA protesters.

Notices were issued in that case in March this year, with a direction to the UP Government to file its reply.

Recently, the High Court asked the UP Government to explain under what law it had issued "unilateral" recovery notices to individuals alleged to be involved in the anti-CAA protests, while hearing the plea of former IPS officer SR Darapuri.

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