allahabad-high-court-orders-removal-of-controversial-name-and-shame-hoardings

Context

  • Recently, Allahabad High Court directed the Lucknow administration to remove forthwith the controversial ‘name and shame’ hoardings of those arrested during protests against the Citizenship (Amendment) Act.
  • The Court has also asked the District Magistrate of Lucknow to submit a report on the action taken by March 16.
  • In response the state of Up has filed a special leave petition in the Supreme Court against the order of Allahabad High Court.
  • The Supreme Court in turn has sent this issue to be decided by a larger bench.
  • Meanwhile, The Government of UP brought an ordinance for the recovery of damage to public and private property during protests, bandhs and riots.
  • Later, A Public Interest Litigation (PIL) was filed in the Allahabad High Court seeking the suspension of or stay against the ordinance.

The Ordinance

The State government enacted  Uttar Pradesh Recovery of Damage to Public and Private Property Ordinance, 2020.

Objective

  • To recover compensation from those who damage public and private property during protests and riots. 

Provisions 

  1. It mandates that  the owner of any private property or the head of the office concerned with respect to the public property, may file claims for compensation within three months of any incident that causes any damage during public protests, bandhs or riots. 
    1. The claim can cite as respondents those who exhorted or instigated or committed acts that caused the damage, as well as those named by the police.
  2. Under the new law, the Claims for compensation will be decided by designated Claims Tribunals that will be authorised to investigate the complaints and assess the damage.
    1.  Every order or award passed by the Claims Tribunal will be final and no appeal against such orders will be entertained before any court. 
    2. Going further it also provides that no civil court will have the jurisdiction to entertain any questions on the claims.

PIL against the Ordinance

  • The PIL raised objections to the issued ordinance and urged the court to issue a writ order or direction declaring the ordinance ultra vires to the Constitution. 
  • The PIL states that the ordinance under question is not consistent and is in contradiction and departure from the ordinance ­making power of the State provided under Article 213 of the Constitution. 
  • It also objects the provision of Judicial activity without procedural and functional safeguards in the ordinance.
  • It also contends that the ordinance under question has not been promulgated on. 
    • As such, the same has got no force as legislature and is redundant. 
  • Lastly the PIL contests that the ordinance in question, being in excess of competence, is unconstitutional.

Special leave Petition

From which article does the SLP flow ?

  • Article 136 of the Constitution gives the Supreme Court the power to grant special permission or leave.

Objective of SLP

  • Through the SLP, an aggrieved party can appeal to higher authorities against any judgement passed by any court or tribunal

When is the leave granted ?

  • SLP  is granted when the case involves a question of law relevant to the general public as well.

Procedure

  1. First, the aggrieved party has to give a brief overview of the facts of the Case along with questions of law raised, while filing the SLP.
  2. The petitioner will get a hearing, once registered and presented in the court.
  3.  Following that, the Court, post assessment of the merits, will issue a notice to other parties of the case to file their viewpoint.
  4. Now, it is at this juncture, the Court will decide upon granting SLP or not. 
  5. Once leave is granted the case is then the case is  converted into a civil appeal and will be fit for fresh argument in the Supreme Court.
    1. The court can rescind, modify or adhere to the earlier judgement passed.
    2. The court can also exercise its authority to send the case back to lower court for fresh hearing keeping in view the principles laid down by it.

Constitutional Status of SLP and other Articles

  • The remedy under Article 136 (Special Leave Petition) is deemed to be a constitutional right. 
  • Thus, the bar can be overcome through the possible routes under Articles 32, 131, and 136 of the Constitution.
    • Article 32 provides for constitutional remedies through the writs of Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo warranto.
    • Article 131 refers to Original jurisdiction of the Supreme Court in the cases of Centre-State or inter-state disputes.
  • AS per article 141 of the Indian Constitution, the Supreme Court’s judgement is declared as law of the land and is binding on all courts in India.
  • Art. 142 of the Constitution empowers the SC to pass decrees or orders necessary to do complete justice.

Article 32 along with 136, 141, and 142 are part of the Basic structure of the Constitution.

More about the court’s directives:

  • "Reflects colorable exercise of powers": The court observed that the placement of personal data is  gross negligence on part of public authorities and government.
  • Violation of Article 21: There is no power available in the Code to police or the Executive to display personal records of a person to the public at large.
  • Code of Criminal Procedure: the Court is authorised to publish a written proclamation requiring appearance of persons against whom a warrant has been issued.However, there is no such power to display personal records.
  • Power to investigation agencies: the investigating agencies or other Executives are empowered to take pictures of accused for the purpose of their identification and record but that too is not open for publication.
  • Not fugitive: Details can be published only to have assistance in the apprehension of a fugitive from justice.The accused person arrested during protest have to pay some compensation as per rules and they can't be treated as a fugitive.

Government’s Stand:

  • The Attorney General accepted that there is no statute to authorise the executives with such powers but  that the object of displaying personal details of the individuals "is to deter the mischief mongers from causing damage to public and private property.
  • The state has also questioned the territorial jurisdiction of Court by saying that the persons whose personal details are given in the banners are capable enough to agitate their grievance at their own.

Image Source: The Times of India