Advocate Shashank Shri Tripathi filled a public interest litigation in the Allahabad High Court challenging the Uttar Pradesh recovery of damage to public and private property ordinance 2020 stating that the same is being a mischief on the Constitution of India.
The Government of Uttar Pradesh passed the Uttar Pradesh recovery of damage to public and private property ordinance 2020 to recover damage to public and private properties in any violent protest or demonstration from the miscreants on last Friday.
The High Court had last week ordered the removal of hoardings put up in Lucknow featuring the names, pictures and addresses of anti-CAA protesters who were booked for the violent protest against the citizenship law on December 19 last year. The state has approached the Apex Court against the high court’s order.
The SC, while hearing this matter, asked the government under which law the hoardings have been placed and referred this case to a larger bench.
- Defending the Ordinance, 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.”
- Responding to the cabinet’s decision, Samajwadi Party leader Anurag Bhadauriya said, “This government is acting like a dictator and is violating the order issued by the court. The ordinance brought by the government is anti-people and this has been cleared just to fulfil the ego of the present regime.”
- The petitioner in the petition held that, it is a prima facie case of non-existence of the circumstances necessary for the promulgation of theordinance in question and the invalidity at Constitution in its various provisions is made out.
- The petitioner states that the backdrop of this whole scenario relates with the installation of Name & Shame Banners across the roads of Lucknow. The banners came up at a major road side with personal details of morethan 50 persons those accused of vandalism during protest in the month of December, 2019. The poster is seeking compensation from the accused personsand further to confiscate their property, if they failedto pay compensation.
- He stated that the Allahabad High Court took Suo-moto cognizance of this gross violation of human rights and ordered for removal of these banners. The State Government filed Special Leave Petition and prayed for stay order upon the order passed by this court, to which Apexcourt transferred the matter to larger bench without giving and stay order.
- He added that, left with no other option, the State came up with this Ordinance in question. To evade from justifying itself from court of law, by passing such ordinance, the State has played mischief upon the Constitution.
- He stated that, the State has formed a Tribunal in the Ordinance under question, which is beyond Ordinance making power conferred under Article 213(1) of our Constitution.
- He added that Articles 323B of The Constitution of India,1950 also don’t follow the formation of such Tribunal.
- He states that, the ordinance does not provide for the commencement clause and/or do not speaks about its moment of commencement. This again shows the fishy business and the mischief of the State.
- The petition added that, being a quasi-judicial nature of the Tribunals provided in the constitution, the ordinance talks about judicial activity in Chapter 2 Sec.3 and about adjudication in Chapter 3 Sec.7 (1) but without procedural and functional safeguard required at law.
- He also adds that, under Sec. 5 of the ordinance, there is an ambiguity in respect of the chairs of the Head of Department and the Office superintendent.
- He states that under Chapter 3 Sec. 7(2/3), the appointment of Chairman and member is given. It lays down the rule when there would be two or more persons appointed but leaves the ambiguity about the condition when just one person is to be appointed.
- He states that, the Ordinance provides the provision in relation to the eligibility of in-service, Grade-A State employee to hold the chair irrespective of his background in case of single person appointment,which is unconstitutional.
- He added that, Sec 8(7) of the ordinance terms the nature ofthe Tribunal to be a Civil Court whereas Subject matter of the Ordinance in questions covers criminal nature.
- It is stated that, under Sec 7(4), the powers given to State government for distribution of work between multiple Tribunals, is undue interference of Executive in a judicial and/ or quasi-judicial aspect.
- He stated that, in view of the facts and circumstances stated above it is expedient in the interest of justice that impact and implication of the U.P. Ordinance No.2 of 2020 may be stayed/suspended or the status-quo as on date may be maintained during pendency of the present petition.
Edited by J. Madonna Jephi
Approved & Published – Sakshi Raje
- Case of Shashank Shri Tripathi, Advocate vs. State of Uttar Pradesh, Public Interest Litigation filled under Article 226 of the Indian Constitution in the Allahabad High Court by Advocate Shashank Shri Tripathi on March 16, 2020.