Perspectives from UP government’s ‘name and shame’ posters

Ahmed Raza

The Uttar Pradesh government’s directive towards putting up the hoardings at Lucknow displaying the names, photographs and residential addresses of the 53 accused of anti-Constitutional Amendment Act (CAA) protesters triggered outrage of possible invasion of right to privacy and liberty as Indian constitution prevails on the basis that, the suspect is innocent until proven guilty in a court of law. Though, the Allahabad High court quickly acted for ensuring the rule of law in the Uttar Pradesh by directing the administration to remove banners immediately reminding them to restrain from any undemocratic action in the future as it violated Article 21 of the constitution of India. The disapproval of the Allahabad High court order by the Uttar Pradesh government by approaching the Supreme Court reflects the growing egotism, bitterness and insensitivities towards individual privacy and liberty in the state. Although, the Supreme Court, however, denied to stay the Allahabad High Court judgement ordering removal of these posters as plead by Uttar Pradesh government, citing a precedent set by the court in its 1994 judgement in R Rajagopal vs State of Tamil Nadu on the issue of privacy contending that people who resort to violence and point guns during protest cannot claim right to privacy.

The Uttar Pradesh government has tarnished its image since December 2019 on account of chief minster’s proclamation against the anti CAA protesters as revenge by initiating a hasty and procedural-lapses decision in order to summon notices for recovering the public property losses occurred during the violence. Displaying identities along with photographs of the accused publicly by the Uttar Pradesh government amounts to be a direct invasion of individual right to privacy and liberty enshrined in the Indian constitution. The piece of writing, here, pointed out towards possible invasions of the fundamental right of the accused persons and also signifies the importance of right to privacy by substantiating legal, constitutional and international provisions.

Legal clarities between accused and convicted persons
An accused person has every right like other citizens of the India except his curtailment of personal liberty in conformity with the laws. The government cannot violate the privacy of the accused on a mere presumption of an offense. An accused person deserves to be presumed innocent until his guilt is proved, hence, all constitutional rights and privileges are conferred to the accused including right to privacy. The rights to privacy of the accused person are of much concern today as it turned out to be a fundamental right after the landmark judgement of Supreme Court in 2017. Hence, government needs to be highly heedful and cautious during the investigation process of an offense before initiating any action against the accused. Displaying the names and shames of anti-CAA protesters by Uttar Pradesh government has been an open invasion of right to privacy of the accused persons as underlined by the Allahabad High Court and the Supreme Court.

Status of right to privacy under the Indian constitution
Privacy happens to be an undisputed right of an individual meticulously associated with his or her life. Though, the constitution of India in specific doesn’t grant any right to privacy as such other fundamental rights, but, leaving a gray-area for a wider interpretation of the Article 21 of the Indian constitution, which states that “no person shall be deprived of his life or personal liberty except according to procedure established by law”. In 1962, the first time the issue of right to privacy as a fundamental right under Article 21 of the constitution reached the Supreme Court in the case of Kharak Singh v. State of UP where the Court equated privacy to personal liberty by affirming privacy is a part of right to the protection of life and personal liberty. Over the time, the right to privacy has been highly debated as the court has on various occasions held that the fundamental rights as enshrined in our constitution are not absolute and is limited by certain factors as it may come in conflict with the investigation of police in several aspects. The latest historic judgement of the Supreme Court evolved in 2017 in K.S. Puttaswamy vs Union of India declaring privacy to be an integral component of fundamental right subjects to the satisfaction of certain tests and benchmarks, which clarifies that like other fundamental rights, right to privacy is not an absolute right. From this perspective, displaying publicly the identities along-with photographs of the 53 accused persons could not be considered as a basis for police investigation, as many of the accused were granted bail by the Allahabad High Court. Therefore, such kind of Uttar Pradesh government directives quantifies to be a state’s invasion of right to privacy with male-fide intention.

Privacy as a human right under International Conventions  
Ensuring right to privacy of an individual always remains a challenge to the political system of a nation as privacy sometimes may hamper the investigative process. It always happens to be a debatable and introspective concern for the elected government. Hence, the right to privacy has also been recognized as a right guaranteed under the Universal Declarations of Human Rights (UDHR) 1948. Article 12 of UDHR states that "No one shall be subjected to arbitrary interference with his privacy everyone has a right to the protection of the law against such interference or attacks." The wider interpretations of the Article 12 of UDHR totally fit into the periphery of an individual’s right to privacy along with the certain limitations set by the government following the principle of procedure established by law. Likewise, an individual’s privacy also has been accepted as a civil and political right under the provision of Article 17 of the International Covenant on Civil and Political Rights (ICCPR) which states that “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation” and everyone has the right to the protection of the law against such interference or attacks. A landmark judgement of 2017 by Supreme Court of India affirming right to privacy as a fundamental right under Article 21 of the Indian constitution has been correlated with the above two provisions of privacy enriched in UDHR and ICCPR to which India is a signatory State Party. Hence, administrative orders of the Uttar Pradesh government towards pasting the banners of the 53 accused with the purposes of recovering the public property losses may not be legally justified as Indian government has a long history of following the international treaties, conventions and commitments.

Immaturities and unprofessionalism of Uttar Pradesh government
The law of the land presumes that the accused person remains innocent until the prosecution proves its case. On the one hand, a large no of videos and CCTV footages of the incidents kept on moving around TV, social media, mobile etc. On the other hand, the Uttar Pradesh government acted round the clock in order to initiate actions against the anti-CAA protesters with the purposes of recovering public property damages from 53 accused persons by displaying publicly their identities along-with photographs without delving deeper into the issue of the privacy of an individual. Displaying the names and photographs of the accused applying section 5 of the Identification of Prisoners Act, 1920 appeared as immature and un-professionalism on the part of the district administration as a scientific inquiry of the evidences becomes mandated before initiating the names and shames modus operandi for recovering the losses to public properties during the unrest. Therefore, such directives of the Uttar Pradesh government deem to be treated as an invasion of right to privacy and full of politically motivated decisions.

Although the issues of violation of right to privacy and liberty on account of displaying the identities of the 53 accused of rioting during anti-CAA protest in December 2019 is sub-judice before the Supreme Court which has already denied to stay the Allahabad High court order for immediate removal of banners. Though, voicing any public opinion must be avoided till the final verdict.  But the Uttar Pradesh government’s directives towards such types of executive orders tempted a number of questions on the legalities and procedural aspects of the right to privacy as reputation of an accused person may be affected due to public display particularly in criminal trials.

Dr. Ahmed Raza, Assistant Professor, Department of Public Administration, MANUU (a central university), SASS Building, Gachibowli, Hyderabad, India – 500 032        

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Frontier
Mar 14, 2020