Citation: Public Interest Litigation (PIL) No. – 532 of 2020
Court: Suo Moto before the High Court of Allahabad
Coram: Division bench of Hon’ble Chief Justice Govind Mathur and Hon’ble Justice Ramesh Sinha.
Theme- Unwarranted inference with the privacy of people and violation of fundamental right by revealing personal details of CAA-protestors
Subject: Constitutional law
The Allahabad High Court decided to take suo moto notice when banners with personal details of more than fifty anti-CAA protestors accused of vandalism came up on the roadside of the city of Lucknow after the December, 2019 protest. The police decided to place such hoarding across the city of Lucknow with names, photographs and residential addresses of the accused, demanding compensation from the protestors for the damage caused to public and private property, and in case of non-payment within the stipulated time, a threat to confiscate their properties. Putting such personal information on banners was seen as violation of fundamental right of Right to Life as it injures privacy of the accused persons and thus the Lucknow Administration has been called upon to explain under what authority they have undertaken such action. Accordingly, the Commissioner of Police and District Magistrate, Lucknow appeared before the High Court of Allahabad through the Advocate General of the State. Although the Advocate General accepted the fault of Lucknow Administration, however, challenged the petition.
The following issues arose in the given case:
(i) Whether the High Court has power to suo moto register a Public Interest Litigation in this instant matter where rights of underprivileged persons are not involved.
(ii) Whether the Allahabad High Court lacks territorial jurisdiction.
(iii) Whether the action of State amounts to unwarranted inference with the privacy of people and violation of fundamental right.
(i) Power of High Court to suo moto register a Public Interest Litigation where rights of underprivileged persons are not involved
The preliminary objection brought by the Advocate General was whether the High Court can suo moto register a PIL in the instant issue. He justified his argument by stating that the remedy of PIL is only meant for underprivileged persons who have are unable to access courts. The protestors whose personal details appeared in the hoardings do not fall under the category of ‘underprivileged’ as they have resources to agitate their grievances. He further cited the Supreme Court guidelines laid down in State of Uttaranchal v. Balwant Singh Chaufal and Others, which provides for streamlining the PIL jurisdictions of courts to encourage bona fide PIL and curb the PIL filed for extraneous reasons, aiming at redressal of genuine public harm and injury.
In response to this, the Division Bench elucidated how it has exercised due application of mind in ensuring that the PIL is aimed at redressing genuine public harm or injury. The bench stated that usually the judiciary takes action after a case or cause is brought before it by a party, mostly leading to adverse litigation. But, when it observes gross negligence on part of public authorities and government, or disobedience of law leading to public suffrage, so that the precious values enshrined in the constitution are subjected to injuries, a constitutional court can very well take a suo moto action and need not wait for an affected party to knock the doors of the court. The court justified its suo moto intervention in the case in hand as providing such personal information on the banners cause serious apprehension to the fundamental right of life and personal liberty as enshrined under Article 21 of the Constitution of India. What is pertinent here is not the economic status of the protestors, but prevention of infringement of fundamental rights guaranteed to them. Since, the act of public administration in the city of Lucknow directly infringes and assaults the fundamental rights of the protestors, the court is justified in exercising its suo moto action to register a PIL.
(ii) Territorial Jurisdiction and Cause of Action
The Attorney General argued that since the cause of action arose in Lucknow, the Allahabad High Court has no jurisdiction in the instant matter.
The Bench rejected the argument and explained that cause of action means the whole of the material facts that is necessary for a plaintiff to allege and prove. In the instant case, the cause is not about personal injury caused to the protestors whose personal details are given in the hoardings, but the injury caused to the constitutional value and the undemocratic functioning of administration. Since, the State was planning to put up similar posters in other cities of the state as well, the impugned action walls within the territorial jurisdiction of Allahabad High Court.
(iii) Unwarranted Interference in Privacy of People
When the issue of violation of privacy was brought, the Attorney General stated that the object behind installation of hoardings with identity of certain protestors was aimed at deterring citizens from participation in illegal activities. The placement of banners with personal details of the accused persons at conspicuous place amounts to larger public interest and court should avoid interference in the same. He further relied on the directions given by the Supreme Court in the case of Re:-Destruction of Public and Private Properties, to justify how the government order to charge compensation from protestors who caused damage to private and public property was in tune with the guidelines provided in this case.
The Bench agreed that, the state can take necessary steps for maintenance of law and order, however in exercising such powers it should not assault fundamental rights of citizens. The court then scrutinised the government order and explained that although the order empowers the government to charge compensation from the protestors accused of vandalism, however, the order does not permit the State to interfere with privacy of such protestors. The court clarified, that the main concern here is not the compensation charged but gross violation of fundamental rights of the citizen by disclosing their personal details. The Code of Criminal Procedure, 1973, gives the power to court to publish a written proclamation requiring appearance of a persons against whom a warrant has been issued and such person avoiding execution of warrant by concealing himself. The Code does not give such powers to police or the Executive to display personal details of a person to public at large. Even the provisions which empower the investigating agencies or Executives to take pictures of accused are restricted to the purpose of identification and maintenance of records and thus cannot be published, except in cases of assistance in the apprehension of a fugitive from justice.
Reliance was placed on the Supreme Court case of Malak Singh and others v. State of Punjab and Haryana and others, where the court held that even in the case of history sheeters with necessary criminal history, the information about the history sheet and the surveillance has to be kept confidential and cannot be shared with public. The issue of fundamental right of privacy was discussed in length in the Supreme Court in the case of People’s Union for Civil Liberties (PUCL) Vs. Union of India and another, where the court stated that securing one’s privacy against intrusion of police is basic to free society. Right to personal liberty does not only mean freedom of restrictions in movement, but also, freedom from encroachments in private life. Thus the court held that right to privacy is a part of the right to “life” and “personal liberty” under Article 21 of the Indian Constitution. Once the facts of a given case attracts privacy, Article 21 is attached and the said right can only be curtailed with “procedure established by law.”
Further the historical judgement of K.P. Puttaswamy and others v. Union of India and others, was relied upon which affirmed the constitutional right to privacy as an important component of Part III of Constitution of India. Since these fundamental rights cannot be given or taken away by law and laws, so all the executive actions must abide by them. Since it is not an absolute right, it can be overridden by compounding state and individual interests subject to satisfaction of certain tests which are legality, legitimate goal and proportionality.
Since there is no law which permits the State to put personal details of accused person from whom compensation is to be charged on banners, the test of legality fails. The second test of legitimate goal also fails because the act of the State to provide for personal details of offenders required to pay compensation on banners is not necessary, as the offenders are not fugitives. The third test of proportionate interference also fails as only personal data of few persons have been placed on banners even though there are lakhs of accused persons who are facing serious allegations pertaining to commission of crimes whose personal details have not been subjected to publicity.
In the present case, the High Court of Allahabad directed the District Magistrate, Lucknow and the Commissioner of Police, Lucknow, to “forthwith” remove the banners from the road side containing personal information of individuals without having authority of law and held that:
(i) The court has power to suo moto register PIL as although the action of the State does not affect the rights of underprivileged person, but interferes with the constitutional mechanism of the country by violation the right to life and personal liberty.
(ii) The court also has territorial jurisdiction in the case, as the cause of action here is not the personal injury causes to the protestors, but violation of constitutional provisions and undemocratic functioning of the executive authorities.
(iii) The action of state to put person details of protestors on banners is nothing but unwarranted interference in privacy of people, violating Article 21 of the Indian Constitution, as right to privacy is a part and parcel of right to life and personal liberty.
PRESENT STATUS OF JUDGEMENT
(i) Plea before Supreme Court of India
After being aggrieved by the orders of Allahabad High Court, the Uttar Pradesh government filed a plea in the Supreme Court of India. The matter was heard by a Vacation Bench of the Supreme Court Justices U.U. Lalit and Aniruddha Bose and the bench did not stay the order of Allahabad High Court which directed the district and police authorities in Lucknow to “forthwith” remove roadside hoardings containing the personal details of protestors accused of causing harm to private and public properties during the anti-Citizenship (Amendment) Act (CAA) protests in December 2019.
The Bench stated that the State’s action of publicly displaying personal details of protestors on roadside banners is not “covered in law” and differentiated between video-graphing riotous behaviour of protestors as evidence and displaying personal details and photographs of such protestors. They agreed that wrongdoers have to be brought to book, however, in doing so the State can do anything beyond what is permitted by law.
(ii) Matter referred for Appeal to a Larger Bench
The Division Bench of Justices U.U. Lalit and Aniruddha Bose believes that the controversy involves “issues which requires further elaboration and consideration”, thus the appeal filed by the Uttar Pradesh government to be referred to a larger Bench, set up by Chief Justice of India S. A. Bobde.
(iii) Allahabad HC extends date to comply with order to remove “name and shame” banners in view of State’s pending appeal before Supreme Court of India
The Allahabad High Court pushed the date to comply with its earlier order of removing banners with personal details of persons alleged to have caused damage to property during anti-CAA protests in Lucknow. The Bench of Chief Justice Govind Mathur and Justice Ramesh Sinha extended the time limit to 10th April, 2020 after taking into consideration the submission of State regarding the pending appeal before the Supreme Court of India.
In the view of the author, the decision of Allahabad High Court is correct. The action undertaken by the Uttar Pradesh government cannot be justified by laws of the nation. If the government is so keen to take action against the rioters, it should do so by following the legal procedures established by law, rather than by infringing upon the fundamental rights of protestors. The action of naming and shaming the protestors not only assaults the constitution, but also acts as an open invitation to common men to lynch them as the posters had personal data including their addresses and photographs. The ones responsible for proper execution of law should not be the ones violating the law.
Even after the order of Allahabad High Court directing the state authorities to remove such hoarding was passed, the Uttar Pradesh Government passed Uttar Pradesh Recovery of Damages to Private and Public Property Ordinance, 2020, which provides for setting up of Claims Tribunals to adjudicate on complaints relating to damage to both public and private property caused during protests. Section 19(2) of the Ordinance provides that once a Claims Tribunal passes an order for recovery of damages, the name, address and photograph of the person found responsible shall be published. The Ordinance has been challenged before the Allahabad High Court as setting up of the Claims Tribunal is beyond the Ordinance making power which is conferred under Article 213(1) of the Indian Constitution.
Also, the purpose for which the Claims Tribunal is formed violates Article 323B of the Constitution. This move of the state government is nothing but a mischief played with the constitution as the state government is doing nothing but evading from justifying its stand before the court of law.
 State of Uttaranchal v. Balwant Singh Chaufal and others, 2010 (3) SCC 402.
 Re: Destruction of Public and Private Properties, 2009 (5) SCC 212.
 Malak Singh and others v. State of Punjab and Haryana and others, AIR 1981 SC 760.
 People’s Union for Civil Liberties (PUCL) v. Union of India and another, 1997 (1) SCC 301.
 K.P. Puttaswamy and others v. Union of India and others, AIR 2017 SC 4161.
Contributed By: Garima Darda (Student, Symbiosis Law School, Pune)
The views of the author are personal only. (if any)