The Allahabad High Court had ordered the immediate removal of the roadside posters in Lucknow. (Express Photo)
A two-judge bench of the Supreme Court on Thursday referred to a larger bench a petition of the UP government which has challenged the Allahabad High Court’s order to remove banners and hoardings carrying photographs and details of over 50 people accused of violence during anti-CAA protests in Lucknow.
While it initially observed that there was “no law” to back the action of the UP government, the bench decided to send the matter to a larger bench after it was told about the “persuasive value” of a judgment of the Supreme Court of the United Kingdom.
“Let papers be placed by Registry before the Chief Justice immediately so that a bench of sufficient strength can be constituted by the Chief Justice in coming week to hear controversy involved,” the bench of Justices U U Lalit and Aniruddha Bose said after hearing the state’s appeal.
The bench initially questioned the state’s move and said its action seems to have been without the force of law. “As of now, there is no law which can back your actions,” Justice Lalit told Solicitor General Tushar Mehta.
Mehta contended that the persons whose photographs were on public display were “rioters” and that they had waived their privacy rights after what they had done in public.
He then cited a 2015 judgment of the UK Supreme Court. The appellant in that case, he said, was involved in serious rioting in Derry in July 2010 when he was only 14 years old. CCTV images taken of him during the course of rioting were later published in two newspapers as part of a police campaign called ‘Operation Exposure’ designed to identify individuals involved in the riots and also to discourage further sectarian rioting, he said.
According to Mehta, the appellant contended that it constituted a violation of his privacy rights under Article 8 of the European Convention on Human Rights (ECHR) (the Convention for the Protection of Human Rights and Fundamental Freedoms).
Article 8 of ECHR deals with the right to respect for private and family life. It says in 8.1 that “everyone has the right to respect for his private and family life, his home and his correspondence”. It adds in 8.2 that “there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of other”.
The UK court, in its ruling, said the interference was justified, Mehta said.
Taking note, Justice Lalit said “as presently advised, since there is a judgment of the Supreme Court of a country and since it has a persuasive value, we will refer the matter to a bench of three judges to be taken up before a regular bench”.
Initially, Mehta said that the adjudicating authority, constituted in terms of the order of the Allahabad High Court, had considered the case of 95 people and that after hearing everyone, passed an order in respect of 57 people. “They are involved in rioting… involves rioters of both communities”. It was the pictures of these persons, Mehta said, that were made public. He said the High Court had asked the state to take down hoardings citing privacy rights of the persons.
He said there were various aspects of privacy and that in his view, the real ratio was not considered by the High Court. “Suppose two persons wield guns in public and media shows them. They can’t claim their right is infringed. If they claim, the answer will be ‘you have waived your right’,” he said.
At this, Justice Lalit said: “If the persons concerned are not orderly in public and somebody videographs it, we can say they have waived their right because you have put yourself in public domain. But here we are on a slightly different issue, whether the state has a right to say these are the persons and put up their posters.”
Justice Bose said the difference between the private individual and state was that while the former can do things that are not prohibited by law, “the State can do everything which is empowered by law”. He sought to know “where is that right” and “this is a matter of great importance”.
Justice Lalit said there must be no vandalism and no damage to public property. “So wrongdoer must be brought to book in manner known to law. But can you go two steps beyond,” he asked the Solicitor General.
Mehta referred to the judgments on privacy by the Supreme Court and said “We are, as a country, facing this since long and we have to deal with it… We are laying down the contours but what we did is not unconstitutional. This requires an extraordinary remedy to deter.”
Senior advocate Abhishek Manu Singhvi, appearing for retired IPS officer-turned-activist S R Darapuri, contended that Uttar Pradesh government had violated juristic principle. “You have to make a distinction between a private and public person. Private individual doing something is different from state doing it,” he said, adding the state can only do those things which are permitted by law.
“Let us take a case of child rapists… Since when do we have a system in this country that we can put up his or her poster,” Singhvi wondered. He said putting up posters of accused people also “increases chances of lynching. Because state is making a putative declaration that though he is accused, he has done something against nation and he may be lynched. Someone may spit (on the accused), some may lynch if you put the personal data of an accused in public,” he said.
The orders of the adjudicating authority, Singhvi said, was not final and also pointed out that a challenge to the notices issued for recovering compensation was pending before the Supreme Court.
Mehta pointed out that Darapuri “was found in riots”.
Senior advocate Colin Gonsalves, appearing for another person whose photograph was included in the hoarding, claimed there was no video testimony against any of the accused.