Why UP Name & Shame Banners Were Brought Down – And Must Stay Down

One of the banners in Lucknow

(Photo: Altered by The Quint)

The Allahabad High Court, by directing the removal of the hoardings displaying the private details of individuals within a day of the hearing, has demonstrated that swift action by the courts performing its constitutionally mandated role is sufficient to safeguard fundamental rights.

By now, the notices sent by the Uttar Pradesh Government to several persons to recover compensation for alleged damage caused to public property during protests against the Citizenship Amendment Act in December are infamous. As has been argued here, these notices do not have a legal leg to stand on, but rely on a strained interpretation of two judgments (one by the Supreme Court and the Allahabad High Court) containing guidelines on how to assess damages in the event of destruction of public property.

In fixing liability on persons without a trial, these notices disregard one of the most basic universal principles of justice of a fair trial by an independent body. In fact, while drafting the Indian Constitution, the framers were particularly clear that civil liberties would only have meaning if the judiciary would be independent and separated from the Executive at all levels.

Notably, the Supreme Court has already called on the government to defend the legality of these notices, and the Allahabad High Court has stayed the operation of notices against some protesters who have challenged the notices before the high court.

Despite these judicial orders expressing doubts on the legality of these notices, 57 persons in Uttar Pradesh woke up to their names, photographs, and addresses plastered on giant hoardings across the state, with a declaration that they must compensate the state for damage to public property.

This move is unprecedented and is entirely incompatible with the principles of a constitutional democracy.

At a basic level, it is ridiculous to “name and shame” persons as perpetrators of a public wrong without a trial and without demonstrating that the accused persons committed legal offences through their actions.

In any case, displaying the details of these individuals while the process of identifying their culpability is still underway violates their right to privacy. One might argue that society has a right to know about the criminal antecedents of persons.

Assuming that to be true, it still needs to be proved that a person has committed illegal acts, and even then, the state would have to explain how much of what information is necessary to be divulged in public interest.

In the situation at hand, neither has happened, and yet the state has published many of the accused persons’ details, including their home addresses.

In the absence of the above mentioned steps, the state’s action of publishing the details of the accused persons is a clear violation of the fundamental right to privacy.

Finally, by dispensing with a trial to determine the guilt of the accused, and proceeding to publicly condemn these individuals, the state has rendered these individuals vulnerable to mob violence.

The wide prevalence of lynch mobs in India cannot be seen as an irrelevant fact in this regard. Here, it is also worth emphasising that such a measure has never been resorted to in the past, even in respect of the gravest of crimes.

It is in this context that the Allahabad High Court taking note of the serious injury being caused to the rights protected under Article 21 due to the actions of the state, took suo moto cognizance of the issue and called upon the state to justify their actions.

Aside from raising technical objections over the scope of the high court’s jurisdictional powers, the state sought to carve out a broad area for itself to act in furtherance of maintaining law and order without judicial interference.

It is worth noting that the state (including the central and several state governments) often makes such broad brush arguments that involve nothing more than the incantation of “public interest”.

Unfortunately, this argumentative strategy of merely asserting that matters cannot be subjected to judicial review without explaining why has occasionally succeeded in court, particularly in the recent past. Some have argued that this is because the judiciary is now “more executive-minded than the executive”.

Regardless of the reason, this has created an impression that the judiciary has very limited powers, and it seems like the judiciary is carrying out an extraordinary task when it performs its constitutionally mandated role of reviewing state action.

Fortunately, the Allahabad High Court has performed its constitutional role with extraordinary speed, perhaps owing to the shocking unconstitutionality of the Uttar Pradesh Government’s actions. In finding a violation of the right to privacy, the high court rejected the binary that the state sought to draw between law and order and fundamental rights and pointed out that the power to maintain law and order, however broad, cannot be permitted to violate fundamental rights.

The court reasoned that the state failed to point to any law that permitted such executive action (as mandated under Article 21, which declares that personal liberty shall only be deprived by “procedure established by law”).

The court also found that the state failed to justify how these banners were considered necessary to deter people from participating in illegal activities given that the same are not resorted to in respect of persons accused of other crimes.

Indeed, by publicly naming persons who took part in protests without the evidence against them being tested, the state is effectively deterring people from taking part in protests. The court was thus also correct to characterise the action as a colourable exercise of power.

At the heart of the reasoning of the high court is a constitutional philosophy that appreciates the value of rights, thus requiring the state to adequately justify its actions. Recently, with the Bidar case where a state government is investigating whether a school play was seditious and where airlines are banning comedians without inquiries, the state is pushing the envelope of what is acceptable in our constitutional democracy.

In this context, the agile response of the Allahabad High Court to push back against the same and reminding the state government of its constitutional obligations deserves to be lauded. The decision of the state government to appeal and not accept the decision of the high court merits the concern of the public.

(The authors are Delhi-based lawyers)