The Uttar Pradesh government recently promulgated the Uttar Pradesh Recovery of Damages to Public and Private Property Ordinance, which aims to recover losses caused to public and private property during situations of protests, public violence, arson and riots.

In early March, the district administration of Lucknow put up banners all over the city displaying names, photographs and addresses of certain people who were accused of damaging public property during the anti-CAA protests.

The Allahabad High Court took suo motu cognizance of the display of banners and held that the state was not legally permitted to place banners with personal data of accused. Holding the act to be a violation of Article 21, the High Court directed the administration to remove the banners.

An appeal was then made to the Supreme Court, which refused to grant a stay on the order. While referring issues related to the matter to a larger Bench, the Apex Court observed that the state government did not have the power to take the said action.

Most recently, the Allahabad High Court issued notice in a petition terming the Ordinance as an attempt frustrate and overrule the law laid down by the Division Bench in the suo motu case.

The Indian Constitution, under Article 213, vests with the Governor the power to promulgate ordinances during recess of the state legislature. Such ordinances are to have the force of law until the legislature is back in session, after which, they have to be presented before the legislature for approval. This is an extraordinary power and should only be used if the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action.

In the case of R.C. Cooper v. Union of India, the Supreme Court stated,

“Exercise of the [ordinance making] power is strictly conditioned. The clause relating to the satisfaction is composite: the satisfaction relates to the existence of circumstances, as well as to the necessity to take immediate action on account of those circumstances.”

Further, in D.C. Wadhwa v. State Of Bihar, the Apex Court said that the power to issue ordinances is an emergency power and “is essentially a power to be used to meet an extraordinary situation” and that it cannot be allowed to be "perverted to serve political ends".

A similar view was recently reiterated in the case of Krishna Kumar Singh, where Justice Chandrachud opined that the authority to promulgate an ordinance is “conditional upon a satisfaction that circumstances exist rendering it necessary to take immediate action”.

The UP Ordinance fails the test of emergency situation. The Act has been brought to recover damages from loss to public and certain private property due to acts of public violence, rioting, arson, etc. However, legal provisions are already in place to deal with such situations.

Further, the Ordinance appears to be fuelled by the disgruntlement of the state government after the name and shame hoardings case and reeks of mala-fide intent.

The motive of the entire ordinance becomes all the more suspicious as it contains a provision regarding putting up banners of people accused in acts of arson, public nuisance, rioting, and public violence. It appears that the purpose of the Ordinance was not to speedily recover damages caused to property, but to vindictively gain statutory authority to name and shame certain people.

It is also noteworthy that the government has never previously felt the need to publicly name and shame people accused of crimes of a much more serious nature.

The Ordinance fails to clearly define terms such as ‘Karyalaya Pramukh’ (Head of the Department); ‘Ayukt’ (Commissioner) ‘Apar Ayukta’ (Additional Commissioner). It is stated that the tribunal which shall be formed under the Ordinance shall comprise two or more people who should have either retired from the post of district judge (as Chairman) or has been an officer of the rank of Additional Commissioner.

However, the term ‘Additional Commissioner’ is neither defined in the Ordinance, nor is used in the common parlance of the state with a uniform meaning.

The Ordinance further does not specify the terms and conditions of service of these members and leaves them to be decided later through rules. The claims tribunal has been provided with wide ranging powers of investigation, collection of data, summary trial, including other powers of a civil court.

A tribunal established for an important state function with varied powers needs to be formed in clearer terms than those provided in the Ordinance.

The Apex Court in the Maneka Gandhi case established the principle of the golden triangle of the Constitution that brought forth the inter-relation between Article 14, 19 and 21 of the Constitution. The present Ordinance violates all three principles which are fundamental to the basic Constitutional structure of the nation.

The present Ordinance deals with claims on damages to public and private property, but limits the definition of private property to the moveable and immoveable properties of religious endowments, societies, trusts or firms.

As understood through Maneka Gandhi v. Union of India, Article 14 of the Constitution strikes at arbitrariness of state actions and ensures fairness and equality in treatment.

The Supreme Court has thereon developed the concept of intelligible differentia through cases such as State of WB v. Anwar Ali Sarkar and DS Nakara v. Union of India, where it has been held that reasonable classification is permitted in state actions which such classification has a nexus with the object sought to be achieved through the act.

Applying the reasoning to the present Ordinance, one can justify the classification between public and private properties. However, the logic of segregating some private property from others remains unclear.

Are the properties of a private person which are not accorded to societies or trusts or religious endowments less important? Should an individual not be accorded equal protection to the losses caused during violence, arson and riots – when he is equally susceptible to damages?

Depriving individual properties of the right to claim damages is all the more arbitrary as individuals often have lesser monetary backing to restore damages to their property as compared to institutions.

The Ordinance provides for summary trial based on a report of the Circle Officer, which he shall derive from the FIR and preliminary reporting made to him. The trial shall be speedily disposed and the accused, if found guilty, shall be liable to compensate for the damages accrued to the property up to twice the value of the damage sustained.

The Ordinance further provides that as soon as the order is passed, the personal property of the guilty party shall be seized with immediate effect and his photograph, name and address shall be publicly displayed until he compensates for the damage. No appeal shall lie against the order.

These provisions based on a summary trial, make the Ordinance extremely draconian. It is possible that the Ordinance instills so much fear in the people that they stop exercising even their fundamental right to peacefully protest under Article 19 of the Constitution – dreading the possibility of a peaceful protest turning violent and their names featuring in FIRs even when they did not participate in violent activities.

The provision on naming and shaming of accused particularly raises concern. Such action not only violates the fundamental right to privacy under Article 21 as laid down in the Justice Puttaswamy case, but also exposes the accused to public wrath which could potentially lead to violence against the accused.

The threat lies not only to the accused but also to his family members, who might have no role to play in the accused’s activities. In cases such as anti-CAA protests, which have polarizing outcomes, the perceived threat to the accused and his family’s personal safety becomes very real.

Damage to public or private property is a serious offence and needs to be penalized. However, such penalty can only be imposed in a lawful manner and not arbitrarily. The government, by promulgating hurried Ordinances, does more harm than good to the legal system.

What is further disheartening is the huge public support that the government received for putting up posters that jeopardized some people’s safety and now for this Ordinance. The reasoning given for the support finds its roots in extremely rudimentary form of retributive justice. People forget that being accused does not establish the guilt of a person. Who would be answerable to the named and shamed persons if it is later found through trial that they were not guilty of the offence?

Such measures taken by the state and supported by the population, point towards a dystopian reality where the principles of natural justice have no meaning.

The author is Research Scholar (Law) at IIT Kharagpur. She has completed her LLM from South Asian University, Delhi

Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect those of Bar & Bench.