Courts’ thumbs down to ‘name and shame’ posters, Yogi govt readies Ordinance… Read the full saga here

– By Aastha Tiwari

“Do you know the difference between what an individual and a State can do? An individual can do anything not prohibited by law. A State can do only what the law empowers it to do,” addressed Justice Bose to Mr. Mehta while dealing the appeal filed in the Supreme Court by the UP government in the current hoarding shaming case. The quote simply means that a State cannot do anything that is not provided by law. If it wants to put hoardings of the accused persons on the roadside, there must be a law empowering the government to do so. It is one of the basic principles of Administrative law that the State has to stay within the contours of law.

Last week, the Uttar Pradesh Government set up the hoardings at several locations in Lucknow to identify those who allegedly committed violence during demonstration against the CAA-asking them to pay compensation for the vandalization they have done. The posters have their names, address, photos on it. Allahabad High Court took Suo moto cognizance of the matter and ordered removal of the hoardings immediately. Called the act of the state “shameless” and “unwarranted interference in privacy”. The court did not go into the fact on the quantum of compensation demanded, it only said that posters of accused persons violate basic principles of the constitution. Let us discuss the legal issues or rather legal questions that are involved in this political matter:

Can High Court Suo moto register a PIL (public interest litigation) with respect to the issue:

The State Government argued that PIL is meant for the underprivileged who cannot access courts. It is not for those who can come to the court for their redressal. The court should’ve not interfered in the matter Suo moto as the persons whose names, pictures and address have been on the hoarding were able to agitate the matter themselves. Attorney General also quoted State of Uttaranchal v. Balwant Singh Chaufat and ors, 2010 SC, in which the court has given the guidelines regarding the jurisdiction of PIL. Like, PIL is something that should be invoked in exceptional circumstances and not as a matter of routine; The court should prima facie satisfy itself with the correctness of PIL, satisfy that public interest in involved and needs urgent hearing; PIL is aimed at redressal of genuine public harm or public injury and not personal motives. Mr. OP Sunariya (Retired District Judge, Madhya Pradesh) has written an open letter to the Hon’ble Chief Justice of the Allahabad High Court wherein he said that ordinarily, only after scrutiny and successful motion hearing the notice is sent to the opposition in PIL cases. But in this case, you (referring to the chief Justice) took the matter suo moto, did the scrutiny, motion hearing was also done by you and then you only accepted it. The opposition were given just 8-10hrs to come down to Allahabad from lucknow. Hearing was done on Sunday, and ordered was immediately passed by you. Clearly you kept this matter to the highest importance.

As per the High Court, “where there is a gross negligence on the part of public authority and government, where the law is disobeyed and public is put to suffering and where constitution is injured, a constitutional court can very well take notice of that at its own.” The court said it was a “glaring illegality” on the part of UP government to put up those hoardings and that “no court can shut its eyes if public unjust is happening before it.” However, one may ask why such inquisitiveness was not shown by the courts in matters related to rapes, murders, and other serious matters when more than 7 lakh cases are pending in the Allahabad high court? why didn’t this court take a suo moto cognizance when leaders of the opposition party gave hate speeches and provoked Indian citizens to come to streets and fight against CAA-when they convinced the citizens that CAA is a law that will take away their citizenship, despite knowing that there is no such mention in the Act.  Why didn’t they show urgency in pending cases that as old as 30 years ago?

Whether Allahabad High Court has jurisdiction, when the incident happened in Lucknow?

This contention was particularly interesting which was raised by the State Government that Allahabad high court had no jurisdiction in the present case. To which the High Court justifies that Cause of Action here is not injury to private individual but the injury to the constitution and its shameless depiction by the administration, undemocratic functioning of governmental agencies. As much as it sounds persuasive and impressive, there are certain concerns we need to address. The literal meaning of cause of action has two ingredients- first, existence of legal right of the petitioner and second, violation of that legal right of the petitioner. Any private right (fundamental or legal) that gets violated will be invariably and inextricably affect the constitutional morality. It will have a direct consequence on the constitution. But that does not mean cause of action is the constitution and not the personal right. Such a thing will make the whole idea of territorial jurisdiction vague. Anyone and everyone can approach any court stating that constitutional morality has been affected, which in result will only increase the pendency of cases.

Whether States action to be called as ‘an unwarranted interference in privacy’ without any legal basis and legitimate aim?

This is the main legal issue upon which the entire incident is based. When the High Court ordered immediate removal of the hoardings, as it violated the fundamental right to privacy given under article 21, the state had its own reasons to justify the act. The state in reply quoted various judgements including the decision in R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632, which held that a convicted criminal cannot claim right to privacy to stop publication of a book on his criminal acts. Further, the SG also cited a UK decision^[1], which had upheld the action of police in publishing the photographs of a child rioter. Photographs were taken from the CCTV footage that clearly showed the riot and the involvement of the child. That is exactly what Justices Lalit and Bose while hearing the Appeal said. They stated there was a difference between video graphing a person’s unsocial or riotous behavior as evidence and the State displaying personal details and photographs of citizens.

In India, we have K.S. Puttaswamy case[2] which provides for a three strep formula which checks whether right to privacy of an individual can be infringed by the state or not. First being the test of legality, that is, such action must have a legislative or statutory basis. There must be a law/Act which allows such an action. Like, a law that allows asking compensation from the ‘accused’ by putting up their personal details publicly. Second being the test of need and necessity, that is, such action shall serve a definite purpose in public interest ( in this particular case, such a negative publicity of the accused shall work in public interest and deter them from committing violence) and last being the test of proportionality, that is, such action shall be at the minimum level required to achieve the object.( here, that it putting up their personal details on the roads was the least that the government could have done to deter them or confiscate their property. There was no other option).

Although when the matter went on appeal, the Supreme Court did not interfere with the High Court order. In fact, it stated that the controversy involved “issues which needs further elaboration and consideration”, and referred it to a larger Bench, to be set up by Chief Justice of India S. A. Bobde “immediately”. During the hearing, Judges orally remarked that State’s action of displaying the names and personal details of people on roadside banners was not “covered in law”. Which is the very first test laid down in K.S. Puttaswamy. The Uttar Pradesh cabinet, however, approved the Uttar Pradesh Recovery of Damage to Public Properties Ordinance, 2020, thereby providing the authorisation to the Yogi Adityanath government in Uttar Pradesh to confiscate properties of individuals involved in damaging property during riots in the state, including the recent anti-CAA riots. But nothing much is disclosed about it as of yet. Without giving any further details, the officials said the specifics would be known when the “niyamawali” or manual of rules was released; and said the ordinance was based on a 2007 order by the apex court that a “strong law” was needed to deal with the damage to public and private property during political protests and demonstrations.

Assuming that this Act/manual of rules does provide a manner in which property can be confiscated and let’s say it does allow hoardings of the ‘accused persons’ to be put up on the roadside. Can this Act have retrospective effect? The Act has only come into force after the high court and supreme court warned the state that its action is without legal backing. It is a trite law that a criminal law has a prospective effect and not retrospective effect, meaning thereby that a present law cannot punish people for the acts done by them in past. The act shall have effect from the date of enactment and not any earlier date. The ordinance states that all the matter will be decided by the tribunal, the decision will be final and there is not scope of preferring an appeal.

However, barring an appeal and challenging constitutionality of the Act are two different things. If the Parent Act (Uttar Pradesh Recovery of Damage to Public Properties Ordinance, 2020) is unconstitutional then provisions given under the act will be invalid. Secondly, let’s say court does not find it unconstitutional, let’s say rules provide legal methods by which property can be confiscated, whether the executive can abuse its power and do things in an arbitrary manner be allowed? The answer is No. The State cannot violate the privacy of the ‘person involved’ in the guise of maintaining law and order. It will be a Colourable Exercise of Power which is against the basic tenets of Administrative law. The larger bench of Supreme Court while deciding the matter may choose one of these options – it may either uphold the Allahabad High Court order or may come up with an unprecedented ruling on Right to Privacy, molding the infringement test laid down by the Puttaswamy Judgment. But to make any changes/improvement in the existing law on Privacy we need to have more than 9 judges bench. Whether the matter will further be referred to a higher bench is question we must ask!

((The writer is an acclaimed lawyer and holds LLB and LLM degrees from reputed university))