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Recently, the Allahabad High Court directed the Yogi Adityanath-led government of Uttar Pradesh to remove the hoardings containing names, photographs and residential addresses of the fifty-seven anti-CAA protestors and severely condemned the act by declaring it violative of right to privacy under Article 21 of the Indian Constitution.
The right to privacy refers to the right of an individual to be protected from public scrutiny and review. Article 21 of the Indian Constitution recognizes the right to privacy as a fundamental right. This was validated by the Supreme Court of India in the landmark case of Justice K.S. Puttaswamy vs. Union of India in 2017.
Significance of this development
The court took suo moto cognizance of the incident under Article 226 of the Indian Constitution. This means that the Supreme Court (under Article 32) and the High Courts (under Article 226) can take an action when they are detailed about the violation of the law. This highly reflects judicial activism on the part of judges, to file a Public interest Litigation (PIL) and control the situation pragmatically and systematically.
The action taken by the judges was significant as the act by the Uttar Pradesh Police was ultra vires (beyond its powers) as it tried to take law in its own hands and punish the accused to create a deterrence effect, though they were not authorized for the same.
The right gained its validation precisely in 2017 and so, many precedents are required to be set as examples for its proper application. So, the PIL by the judges acted as a milestone in the development of the right to privacy and added to its worth. This step made it a stronger right and more authoritative as well.
Moreover, the right to life and personal liberty under Article 21 is the most basic fundamental right which is enforceable even during the times of emergency. Thus, it must gain recognition.
Background: The hoardings by UP police
On March 5, 2020, the police had placed several hoardings in the city of Lucknow pinpointing those accused of violence during the protests against the Citizenship (Amendment) Act. The hoardings contained the names, photographs and residential addresses of the accused. Additionally, the accused were also asked to compensate for the damages to public and private property within a prescribed time or have their properties confiscated by the district administration.
However, a division bench comprising Chief Justice Govind Mathur and Justice Ramesh Sinha took suo moto cognizance and held a special meeting. The Allahabad High Court then ordered the District Magistrate and Commissioner of Police of Lucknow to remove the hoardings as the act was highly undemocratic and violated Article 21 of Constitution and “amounts to unwarranted interference in the privacy of people”.
It further stated that “privacy was ‘intrinsic component’ of Part III of Constitution of India that lays down our fundamental rights relating to equality, freedom of speech and expression, freedom of movement and protection of life and personal liberty.”
Privacy as a constitutional right
The right to privacy in India has had a long history. The right to privacy was first discussed in 1954 in the case of M.P. Sharma vs. Satish Chandra wherein an eight judge bench held that makers of the Constitution did not consider the power of search and seizure as a part of the fundamental right of privacy and it was different from the Fourth Amendment of the Constitution of the United States.
Again, in 1962, a six judge bench in case of Kharak Singh vs. State of Uttar Pradesh held that domiciliary visits at night was unconstitutional for violation of ‘personal liberty’, but upheld that the right of privacy is not a guaranteed right under the Constitution. However, Justice Subba Rao gave his dissent stating that even though the Constitution did not declare the right to privacy to be a fundamental right, it was still an essential ingredient of personal liberty.
A similar incident happened in 1975 in the case of Govind vs. State of Madhya Pradesh where the three-judge bench upheld the existence of a fundamental right to privacy for the first time but the right was not absolute and could be interfered with by a procedure established by law.
Finally, in 2017, a nine-judge bench in Justice K.S. Puttaswamy v. Union of India gave a unanimous decision and proclaimed that Article 21 of the Indian Constitution guarantees to each individual a fundamental right to privacy.
Now, this leads to the question, how did the hoardings violate the right to privacy?
How were the hoardings in violation of this right?
The hoardings were clearly in derogation of Part III of the Constitution. By putting up the hoardings of the protesters, the police infringed their right to privacy under Article 21 and lowered their dignity. Moreover, the police even failed to appreciate their right to freedom of speech and expression under Article 19(1)(a). Even in the K.S. Puttaswamy case, the right to privacy was considered an element of human dignity and personal liberty.
Further, the police contended that the hoardings were put to create a deterrent effect but here are many more accused who have committed more heinous crimes but still there details have not been put up on the hoardings and thus, it was not justified to humiliate these protesters and invade their privacy.
The right to privacy is an ideal example of what we say as ‘today’s dissent is tomorrow’s majority’. It has had a remarkable history and overcame many stumbling blocks before finally gaining recognition in 2017.
The right to privacy is an intrinsic component of the Indian Constitution as well as of personal liberty guaranteed under Article 21.
In the above-mentioned incident, the Uttar Pradesh Police was not justified in putting up the personal details of the anti-CAA protesters as it not only violated their right to freedom of speech and expression but also violated their right to privacy. The act was highly undemocratic and challenged the Constitution. The suo moto action taken by the judges gave a new ray of hope and took the right to privacy on a higher pedestal and thus, making it stronger and more authoritative.
To conclude, judicial activism should continue to be much more prevalent in India where injustice is not ignored and the rights of every person are successfully secured.
Author: Arya Mittal from Hidayatullah National Law University, Raipur.
Editor: Tamanna Gupta from RGNUL, Patiala