Explained: UP CM Yogi Adityanath Versus Allahabad High Court On ‘Name And Shame’ Hoardings
There’s strong legal basis for putting up hoardings with the photos of those accused of rioting.
Here’s a brief background.
Uttar Pradesh (UP) chief minister (CM) Yogi Adityanath is no stranger to controversies.
The 47-year-old chief minister had made it clear from the beginning of the anti-CAA protests that while the right to peaceful protest is protected, the protesters will not be allowed to engage in violence, arson and hold hostage the common public.
When the protests turned violent in December last year, the UP administration sprung into action, and followed a zero tolerance policy against those spreading violence.
Over 1,100 people were put under arrest and 5,558 were kept in preventive detention following the violence in UP, the state with the highest Muslim population in India.
Yogi had said at the time that those who damaged public property will pay for it, and the properties of trouble-makers will be seized.
Soon, the police started the work of identifying the rioters via CCTV footage. The police shared hundreds of pictures of rioters in action on social media and asked the public to help in their identification.
After the recent anti-CAA Delhi riots in which dozens lost their lives, many hailed Yogi Adityanath’s no nonsense approach as the factor that saved the state from turning to a similar fate.
Also read: Five No Nonsense Statements By Yogi Adityanath Which Describe How UP Was Saved From Anti-CAA Rioters
Recently, the UP administration put up hoardings in the state with the photographs of the persons identified from the CCTV footage as the violators, and asked them to pay the compensation for the damage caused to the public property.
The posters said that the violators were personally as well as collectively responsible for the damage (personal and several liability).
The total damage listed in the hoardings amounts to Rs 1.55 crore. As many as 57 persons have been identified in the hoardings.
While some praised it as a strict follow-up to the warnings given by the CM beforehand, others criticised it.
Allahabad High Court calls it a violation of Article 21
The High Court (HC) took the suo moto cognisance of the case.
The court said, “where there is gross negligence on 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.”
The HC held the hoardings in violation of the Article 21, as they were “an unwarranted interference in privacy of people”.
While there are certain provisions empowering the state executive to take picture of accused for the purpose of their identification and record, the court said, that too is not open for publication.
It also pointed out that no power is available in the Code of Criminal Procedure, 1973 to the police or the administration to display personal records of a person to public at large.
“The only time these photographs be published is to have assistance in the apprehension of a fugitive from justice,” the court
The court also said that the name and shame hoardings "reflect colourable exercise of powers" as personal details of only these persons have been placed in public, whereas there are lakhs of persons facing serious allegations pertaining to commission of crimes in the state of Uttar Pradesh.
Yogi stays firm on the hoardings
The state government had told the court that the action taken was "to deter the mischief mongers from causing damage to public and private property".
The government had also challenged the suo-moto cognisance of the court saying that it dilutes the provisions of the PIL (public interest litigation) which is provided only for the underprivileged sections of the society, whereas the accused persons in this case were capable enough to agitate their grievance, if any, on their own.
After the judgement, the CM's media adviser Mrityunjay Kumar said on Twitter:
"We need to understand the court order in its correct context. The Allahabad HC has asked the government to remove posters and not drop charges [against alleged rioters], thus we will continue to fight to highlights the rioters' identity."
"Mercy for rioters is not possible during Yogi raaj," he added.
Like judicial review, separation of power is also part of constitution’s basic structure
In 2009, the Supreme Court (SC) had taken a tough stance against those damaging public properties at the time, and issued guidelines on how to inflict costs on them.
A SC-appointed committee had recommended that in the cases where the public property is damaged by the protesters, the burden of proof should be shifted to them from the prosecution.
The apex court also directed the High Courts, in case the state governments fail to do so, to take up such cases suo motu and process claims related to damages.
Also, just last year, a Supreme Court bench directed the Reserve Bank of India to make the names of the loan defaulters public setting aside latter’s argument that the move would violate the right to privacy, damage their reputation and make them vulnerable.
The top court held that the names should be made public as the loan defaults were “neither in the best interests of the country nor in the interest of the citizens”.
The ruling effectively means that ‘name and shame’ is justified when it is in the best interest of the country and the citizens.
It is pertinent to ask that, as a deterrent to the rioters, whether the hoardings would qualify on this criteria.
Lastly, the Allahbad HC judgement also raises issues regarding the separation of powers.
It is the executive that is elected by the people and has the duty to maintain law and order in the state. Those who endanger the life and property of the others have to be deterred and stopped, else innocent people suffer.
Like the judicial review, separation of power is also a part of the basic structure of the constitution and the former cannot be used to undermine the latter.
Supreme Court has itself noted in the past that the notion that judiciary alone is concerned with the preservation of liberty is a dogmatic assumption.
“Representatives of people are supposed to know and be aware of the needs of the people. Court can’t sit in judgement over their wisdom.”
According to the esteemed Justice Hans Raj Khanna, known for his independence and courage, “Judicial review is not intended to create judicial oligarchy. The court should be aware of the practical needs of the government”.
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