The Supreme Court on 12th March, 2020 refused to stay the 9th March decision of the Allahabad High Court and directed the registry of the apex court to put up the file before Chief Justice of India for constituting a 'bench of sufficient strength' to hear and consider the case. The vacation bench comprising Justices UU Lalit and Aniruddha Bose was hearing a special leave petition filed by the government of Uttar Pradesh against Allahabad High Court's order to remove the 'name and shame' hoardings in Lucknow. The bench said there is no backing of the law for the action of the Lucknow administration and the police to put up the hoardings.
On 11th March, 2020, the Uttar Pradesh government has approached the Supreme Court against the decision of Allahabad High Court in 'In-Re Banners Placed On Road Side In The City Of Lucknow' dated 9th March, 2020 ordering the Lucknow Police Commissioner and Lucknow District Magistrate to remove the banners containing the personal details of persons, who were issued notices for the recovery of the damage caused to public and private property during anti-CAA protests in Lucknow on 19th December, 2019.
It is a questionable move given the fact that State of UP through its Advocate General accepted in the Allahabad High Court that there is no statutory law under which the district administration had put up these banners. The High Court in its decision had ordered the administration to remove the banners and file a compliance report by 16th March, 2020. But instead of removing the banners put up illegally, the State government decided to approach the Supreme Court.
The state government has a weak case on two points. First, there is no statutory law supporting the action of the government putting up banners on road side divulging personal details of the persons and secondly, the procedure adopted by district administration to assess and recover damages allegedly caused by rioters is not as per the guidelines issued by Supreme Court in this regard in 2009. Therefore, we are of the considered view that state government may not get any relief from the apex court on the basis of above mentioned legal intricacies. In this article, we will discuss both of these legal points in detail.
The right to privacy is the crux in the Lucknow's hoarding case. In Justice K.S. Puttaswamy (retd.) and others vs. Union of India and others AIR 2017 SC 4161, the 9 Judge Bench of the Indian Supreme Court unanimously held that right to privacy is well protected under Article 21 of the Constitution of India. Every person, irrespective of his background, enjoys this constitutionally preserved right. The Constitution believes in certain values, which must be available to all irrespective of the past of a person.
Under every circumstance the privacy of the individual needs to be protected. There are few exceptions to this rule. As per the doctrine of necessity, under the Code of Criminal Procedure, when an accused is not traceable to appear before the competent court, the photo can be published in an attempt to secure the presence of the absconding accused with the prior permission of the court. Usually the photos of the accused can be taken for identification purposes but cannot be shared or published in the public domain.
We will analyse the problem arising out of putting up banners in Lucknow from two angles:
There is no statutory law- central or state- where damage caused to public property can be recovered from the perpetrators of violence or the rioters. In order to fill this legal lacuna, the apex court intervened and in 2007 constituted two committees under Justice K.T. Thomas and Jurist Fali S. Nariman to recommend legal steps required to assess and recover the damage caused to public and private properties. Accepting the recommendations of these two committees, the Supreme Court issued guidelines in 2009 in 'Re: Destruction of Public and Private Properties' 2009(5) SCC 212 with regard to assessment and recovery of damage caused. These guidelines would be applicable in every case of violence where public or private properties are destroyed during protests, agitations, hartals, strikes or riots.
These guidelines would be the law until some statutory law is enacted by the Central or State legislatures.
Onus on High Court to investigate and award compensation
Under the 2009 guidelines, the High Courts were made responsible for carrying out the exercise of assessment and recovery. The High Courts were given further powers to appoint sitting or retired High Court judge or the district judge as the claim commissioner. The Indian Supreme Court reiterated these guidelines in 2018 too. The highest court of the land put onus on High Courts to assess the damage and recover the amount.
The respective High Court is under obligation to take cognizance of mass damage caused to public or private property either on its own when state fails/refuses to intervene or when state government approaches it with a report of the damage caused. High Court then would appoint a sitting or retired High Court judge or a district judge as claim commissioners to estimate the loss to public/private property. Thereafter, perpetrators of the violence or the event organisers would compensate for the loss.
If the damage caused is inter-state then Supreme Court may assess the damages and order the recovery of the loss caused. It is pertinent here to emphasise again that this complete process has to be monitored either by High Court in case the violence and loss are restricted to a state or the Supreme Court in case of inter-state violence and loss. The accused parties or persons will be given the chance of being heard before the claim commissioner finally submits its report to High Court or the Supreme Court as the case may be.
Supreme Court's 2009 Guidelines were wrongly interpreted by Allahabad High Court in Mohammad Shajauddin vs. State of UP judgment (2010)
In a 2010 decision in Mohammad Shajauddin vs. State of UP, Allahabad High Court directed the state government to discharge the responsibility of assessing and recovering the damages from the vandals/rioters. This decision was contrary to 2009 guidelines of the apex court for establishing the mechanism of assessment and recovery of the loss caused. The Supreme Court guidelines clearly put the onus of assessment and recovery of damages on the High Court and not on the state government or civil administration; while Allahabad High Court in this 2010 decision authorised the state government to exercise these powers. This was in complete violation of 2009 Supreme Court guidelines.
The Apex Court had put the onus on High Court because the judicial oversight/scrutiny is always required as the safety mechanism against arbitrary actions of the state government. The judicial scrutiny is also required to protect political opponents as the ruling party in order to score political brownie points may initiate false cases of recovery of damages against dissenters.
19th December, 2019 Violence in UP: Allahabad High Court stayed the notices of recovery of damages from alleged rioters as the matter is pending in the Supreme Court
Post-19th December, 2019 anti-CAA protests in UP, notices for recovery of the loss caused to public and private properties were issued to many protestors. Advocate Parwaiz Arif Titu filed a petition in January, 2020 in the Supreme Court to quash the recovery notices sent to the protestors alleged to have caused violence and damage to the public and private properties. He has petitioned the apex court as these notices were sent arbitrarily without the application of mind. The notices of recovery were even sent to the person who had died 6 years ago at the age of 94. Notices were also issued to those against whom no cases are filed by the police. A bench comprising Justices D Y Chandrachud and K M Joseph had issued notice to the state government to file its reply to the claims made in the petition.
Keeping in view that the matter of recovery notices is already pending in the Supreme Court; the Allahabad High Court stayed the Kanpur district administration's move to recover the damages.
In the petition filed by Advocated Arif Titu, the Supreme Court has to decide whether the decision of Allahabad High Court in Mohammad Shajauddin case (2010) is in consonance with the 2009 guidelines of the Supreme Court or not. This is essential to decide because the Allahabad High Court through its 2010 decision had made state government the entity/authority (executive platform) to assess and recover the damages whereas 2009 guidelines of Supreme Court gave this responsibility to the High Court (judicial platform). There is a great difference between executive and judicial platform. Normally, the judicial powers are not given to executive.
Since the recovery notices issued by various district administrations in Uttar Pradesh are under judicial scrutiny of the Supreme Court, the urgency to recover the damages by state government is beyond common understanding.
Our view is that state government has no power to assess and recover the damages caused to public or private property. It's within the power of the Allahabad High Court. Claim commissioners are to be from the judicial field. But in the cases related to 19th December, 2019 violence, civil administration assessed the damages and initiated the proceedings for the recovery of the damages. This is totally illegal.
It expected from the Supreme Court to clarify the confusion caused by Allahabad High Court decision in Mohammad Shajauddin case (2010). It may issue direction to the Allahabad High Court to abide by its 2009 guidelines in dealing with the matters of assessment and recovery of damages.
So, from the above discussion it's clear that the proceedings initiated by various district administrations for assessing and recovery of damages from anti-CAA protestors in Uttar Pradesh are in violation of 2009 guidelines of the Supreme Court. When the issuance of notices is in violation of the Supreme Court guidelines and when these notices are under challenge in the apex court; what was the hurry to put the names, photos and addresses of the alleged rioters in full public view through hoardings/posters? This is quite puzzling.
Realising the gravity of Lucknow's 'naming and shaming' hoardings, the Allahabad High Court division bench consisting of Chief Justice Govind Mathur and Justice Ramesh Sinha on 7th March, 2010 took suo moto cognizance of the banners carrying personal details of the people. The state government through Advocate General put forth various defences. It was argued on behalf of the state that these people had already challenged the notices of recovery, so there is no need of a Public Interest Litigation. The State government also objected to the jurisdiction of the court and said that since the posters are put up in Lucknow, the Principal seat of Allahabad High Court has no jurisdiction to entertain the issue. It was also argued that PIL cannot be entertained for hearing the matter of accused, who are facing charges of violence in anti-CAA protests.
The Advocate General of UP argued that 'the object of displaying personal details of the individuals is to deter the mischief mongers from causing damage to public and private property. Such bonafide action taken by the State must not be interfered by the Court in its public interest litigation jurisdiction.' Advocate General cited State of Uttranchal Vs. Balwant Singh Chaufal and others, 2010 decision of the Supreme Court saying 'court should prima facie verify the credentials of the petitioners before entertaining PIL and court should fully satisfy that substantial public interest is involved before entertaining the petition.' To this the judges said, the Balwant Singh case has no relevance to the present matter as the court has taken suo moto action in the matter. The nature of PIL in this case is different. There is no petitioner and the High Court has taken suo moto cognizance of the matter through its PIL jurisdiction.
Further the court said that 'the PIL is aimed at redressal of genuine public harm or public injury.' It observed that 'where there is gross negligence on the part of public authorities and government, where the law is disobeyed and the public is put to suffering and where the precious values of the Constitution are subjected to injuries, a constitutional court can very well take notice of that at its own.' As far as the background of the persons affected is concerned the court held that 'the economic status of the persons directly affected in such matters is immaterial. The prime consideration before the Court is to prevent the assault on fundamental rights, especially the rights protected under Article 21.'
The government defended the hoardings by saying that 'the persons whose photographs have been placed in the banners have already challenged the notice issued to them for payment of the compensation for causing damage to public property.' The court replied to this argument by observing that 'the issue is not the recovery of the compensation but depiction of personal data of persons on a road side, which may amount to unwarranted interference in privacy of a person.' To the argument of advocate general that 'the object of installing the banners with identity was to deter citizens from participation in illegal activities', the court retort by saying that 'state can take necessary steps to ensure maintenance of law and order but that cannot be done by violating fundamental rights of the people.'
It is ironical that after admitting that there are no statutory provisions/laws available with the state, the state government informed the court that it had initiated the proceedings to recover compensation from the accused on the basis of a government order that it said is in tune with directions given by Supreme Court in 'Re: Destruction of Public and Private Properties' reported in 2009 (5) SCC 212. The Court in response to this argument of the state government observed, 'the order cited provides the procedure to charge compensation from the persons accused of causing damage to public property.' The court said that in the present matter 'the court is not concerned with validity of the compensation fastened but to the act about disclosure of personal details of the accused persons.'
The Court, negating most of the arguments presented by the Advocate General to oppose the suo moto PIL, observed that the matter pertained to serious violations of the rights of the people. It held that there is unwarranted invasion of the privacy of the individual and hence it's a violation of right to life and personal liberty under Article 21 of the Constitution of India. It observed that 'Privacy is a fundamental human right recognised in the United Nations Declaration of Human Rights, the International Covenant on Civil and Political Rights and many other international and regional treaties. The privacy underpins human dignity and key values of a democracy. Nearly every country in the world recognizes a right of privacy explicitly in their constitutions'
It further observed that 'In our country, where privacy is not explicitly recognized as fundamental right in the Constitution, the courts have found such right protected as an intrinsic part of life and personal liberty under Article 21 of the Constitution of India. This fundamental right provides lungs to the edifice of our entire constitutional system.' The court was very right when it said that 'a slightest injury to it is impermissible as that may be fatal for our values designed and depicted in the preamble of the constitution.' These observations by the High Court in this suo motu PIL are very pertinent as any tinkering with these values will undermine the structures and mechanisms developed to protect an individual against the mighty State.
Publication of photographs of Accused and Response of other High Courts
The other High Courts have come to the rescue of persons, even if they are suspects or accused, when their privacy was violated by police or the executive. Let us discuss few instances where High Courts expressed their concerns when photographs of accused were published in the media. These instances will make it amply clear that courts have forbidden the practice of publishing photographs of accused in the media. Publishing the photos and addresses of the accused in the hoardings is a serious violation of the rights of the accused. In October, 2014, a circular was issued by the Maharashtra government to police and public prosecutors for not disclosing the identity of the accused, the methods of investigation and details of the family of the accused to the media. This was done because the publication of all these details will hamper the investigation. Moreover, till the charge-sheet is filed, the information contained in the FIR is only an allegation. Therefore, publication of photos of accused should be prohibited. The other reason is that the photos of the accused could also threaten their security and it could seriously affect the quality of the investigation.
The Police parade of the accused before media is also unethical and illegal. It's a violation of their fundamental right to privacy. In addition to it, a person is innocent till proved guilty, so producing the suspects or the accused before media is not only unethical but invasion into his privacy also.
The Bombay High Court in November, 2014 asked the Union Government to issue a circular, as issued by the state of Maharashtra, prohibiting disclosure of certain information to the media.
In 2016, the Madras High censured the Tamil Nadu police over the publication of the pictures of people suspected of honour killing. A division bench consisting of Justices M. Jaichandran and S. Nagamuthu asked the Director General of Police, Tamil Nadu as to how media was allowed to click the photos of the accused. The pictures of the accused were widely published in the media. The High Court's censure came because the publication of photos of the accused defeats the purpose of identification parade. Therefore, in the interest of the justice photographs of the accused are not be published.
The Telangana High Court in 2018 made it clear that the police have no authority to permit the print and electronic media to publish and telecast the photos of the accused and suspects. It also said that police have no right to violate the privacy of the accused by parading the accused or suspects before the media.
Though the above mentioned cases differ in details from the Lucknow's naming and shaming hoardings case, but the substance of all these cases is the same. The privacy of the accused should not be invaded. The accused faces the criminal legal system for the offences he has committed, and thats why state government or the police have no legal right to violate the privacy of the people.
Similar damage to the public property went unpunished: Story of unequal treatment
The Uttar Pradesh government for assessing and recovering the damages is taking a refuge in 2010 Allahabad High Court decision, which is contrary to 2009 guidelines of Supreme Court as discussed above. The government of Uttar Pradesh appears in haste to take 'revenge' from anti-CAA protestors. Here, we are not trying to say that action against rioters for the damage caused to public and private properties should not be taken but what we are trying to say is that it should be taken as per the law.
Secondly, the treatment in such cases of vandalism should be similar. There have been many instances where damage had been done to public property by workers of political parties or other people but no action was initiated for the recovery of the damages. Even the workers of ruling party in Uttar Pradesh and elsewhere had indulged in arson and damage to public transport buses and buildings but no action was taken. Thats why we are of the opinion that in similar instances, the treatment adopted is not the same, which is a violation of equality doctrine contained in Article 14 of the Constitution of India- like should be treated alike.
Looking into incidents of arson and loss to public and private properties in states other than Uttar Pradesh, one would lead to the conclusion that though criminal cases were registered for loss to public and private properties but no damages were recovered from the arsonists and rioters. In Patidar movement in Gujarat (2015), where around 600 government vehicles were damaged and Jat agitation in Haryana (2015), where damage of Rs. 1800 crore (approx.) was caused but nothing was recovered from rioters. In Gurjar Andolan in Rajasthan or agitations against the movie Padmavat loss of crores of rupee was done but nothing was recovered by various state governments despite the 2009 guidelines of the Supreme Court, which provided the mechanism for the recovery of damages.
The Delhi police adopted the double standards while dealing with cases of violence and loss to public properties. During November, 2019 Tis Hazari protests of lawyers, loss was caused to public property. There is not a single instance where proceeding was launched for the recovery of the loss caused by lawyers. But when incidents of damage to public property happened during Jamia students protest against Citizenship Amendment Act in December, 2019, police immediately initiated the proceedings for the recovery of the loss caused to the public property. This is nothing but an instance of double standards adopted by police and other authorities.
So, it is proved beyond any iota of doubt that the response and treatment of police and government as far as recovery of loss to public property is concerned are very arbitrary and full of partiality.
Uttar Pradesh government's proceedings against the alleged rioters for the recovery of damages are the glaring examples of the application of double standards.
Conclusion: From the discussion above, it is clear that the proceedings launched for assessing and recovery of loss caused to public property is not based on true spirit and intent of 2009 guidelines given by Supreme Court for dealing with such cases. State government is not the appropriate body for doing this exercise of recovery of damages. This function has to be carried out only by the High Court and the claim commissioners appointed by the High Court.
As far as the matter of putting up banners with full details of the alleged rioters by the state government and administration is concerned, it is certain after the decision of the Allahabad High Court that these banners invaded the right to privacy of the concerned individuals as there is no statutory law for such naming and shaming. Using shame tactics is illegal as these people are not even convicted for the crimes they are charged with. Even after their convictions, these tactics of shaming will remain illegal and in breach of the fundamental right to privacy.
The Allahabad High Court judgement has made it crystal clear that there is no law for doing this public shaming and personal data cannot be put in public domain. The state government of Uttar Pradesh should keep it in mind that it should run the administration by 'rule of law' and not 'rule by law'. There is a great difference between the two expressions. The first one incorporates the government with limitations imposed by the Constitution and the latter one is unbridled government, where whims and caprices of the 'establishment' become 'the law'.
Authors' views are personal.
(Abdul Hafiz Gandhi is an Assistant Professor of Law at Unity PG Degree and Law College, Lucknow and Tarushikha Sarvesh is an Assistant Professor of Sociology, Advanced Centre for Women's Studies, Aligarh Muslim University.)