The Adityanath government on Friday passed an ordinance to recover damage to public and private properties in any violent protest or demonstration from the miscreants. The Uttar Pradesh recovery of damage to public and private property ordinance 2020 was cleared in the cabinet meeting chaired by UP CM Yogi Adityanath in Lucknow on Friday.

The UP Government’s decision to “name and shame” those who damaged public/private property during the anti-CAA protests has raised certain fundamental questions of law. These relate to the limits of right to protests and the State’s response in dealing with those resorting to violence. Key to this interrogation is this: can those damaging public/private property take shelter under the right to privacy? Conversely, can the State put out pictures of violent protesters without there being judicial determination of their involvement in such acts?

Speaking to the media, UP cabinet minister and state government spokesperson Siddharth Nath Singh said, "Supreme Court(SC) in 2011 said that if a government or private property is damaged in any demonstration or protest, stringent law should be made for its prevention. Our government earlier issued an order but the SC, while hearing the anti-CAA hoardings matter, asked us under which law such action has been taken. Based on that we have brought an ordinance which will subsequently be converted into a law."

The ordinance may be read here:

On March 12, the Supreme Court (SC) had referred the “challenge” to the Allahabad HC order to a larger bench! The UP ordinance came a day after the SC had remarked “there is no law to support your actions”, when the UP govt had challenged an Allahabad HC order directing the removal of such hoardings. The UP government produced such a law, through an Ordinance.

Right to Protest

The right to protest is a fundamental right under the fundamental rights section of the Indian Constitution. Article 19)(1)(b) of the Constitution says, “All citizens shall have the right to assemble peaceably and without arms.” However, Article 19(3) authorises the State to impose “reasonable restrictions” on this right “in the interests of the sovereignty and integrity of India or public order”. Further, Article 51A of the Constitution – which talks about fundamental duties – enjoins upon citizens “to safeguard public property and to abjure violence.”

At no point in the seventy odd years of Indian democracy, where a spate of widespread protests have taken place, have protesters or dissenters argued that citizens have right to cause damage to public/private property during protests. Clearly, those who damage property must be brought to book and punished to set an example, avoid repetition of such acts. The punishment acts as a deterrent for other miscreants.

What if someone wields a gun during a riot and also damages public property. Can he be allowed to claim right to privacy?  The SC refused to stay the HC order to take down hoardings, saying "Such drastic steps should be covered under the law.” However, noting that it was "a matter of great importance", it referred the issue to a larger Bench.

Privacy

In a landmark verdict, a nine-judge Constitution Bench in 2017 declared right to privacy a fundamental right under the Constitution, saying it was “the constitutional core of human dignity". However, it clarified that like other fundamental rights, the right to privacy was not absolute and the State could restrict it for protection of national security, preventing and investigating crime.

The very existence of the State is rooted in the idea of protection of citizens’ right to life, liberty and property. When the SC talked about legitimate concerns of the State with regard to national security, crime prevention and investigation, it was only acknowledging this compulsion.

Even after the public killing of innocent people in Mumbai in the 26/11 by Ajmal Kasab in the terror attacks, he was not executed summarily. He was given a proper trial -- not as a kindness or favour but based on the edifice of the Indian state which is the Constitution. Article 21 says, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” This was taken further in the SC ruling in the Maneka Gandhi’s case(1978) when the court held that, “The procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary.”

Whatever the UP Government’s concerns, the caution from constitutional courts point to the absence of due process in such a “Name and Shame” policy. Intrinsic to this understanding is the arbitrary, unchecked power such an ordinance gives wings of the state, tilting power away from the people into the hands of the state, its police, without any checks and balances. The State and citizens – both must remember that there is no substitute to rule of law. Once we have chosen to be governed by the Constitution, it is incumbent upon us to follow it. We can deviate from it at our own peril.

Related articles:

No law to back your actions: SC to UP govt. defending ‘name and shame’ posters

UP govt caused “unwarranted interference in privacy”, says HC

UP police go door-to-door; puts up hoardings of alleged anti-CAA protesters in town