There’s no question that nationwide protest against the antagonistic Citizenship Amendment Act, 2019 (CAA) in India has underlined the profound division inside the biggest democracy of the world and in the international community. This international community truly expressed their concern over this Act and simultaneously questioned whether India would able to maintain its basic structure - Secularism and the biggest strength of the nation that used to known to the whole of the world - India’s unity in diversity or will be the next nation to join the tag of the “majoritarian state” of the world. India though going through its well-endowed political term couldn’t able to clarify properly the raison d’etre of this law to its citizen. That’s why it has been more than 50 days, the nation-wide protest still continues. This right to dissent is the most important freedom given by every democratic constitution of the world unless it does not encourage secession or violence.
From time to time different strategy to suppress this type of dissent has been introduced by the government. Recently, in the northern part of the India, government published names of the protesters photographs and addresses of the protesters on the wall of the landmark road. This roadside banner with clearly magnified pictures was termed as “public humiliation” by many activists and lawyers as this action jeopardise the reputation and mark them as some criminals straightaway. This leads to the question of the hour that how the protester could be tagged as the criminals or convict of the crime which they probably have not committed, as there is no court order till now regarding this matter. The Allahabad High court came as saviour in its suo moto order that directed the removal of these banners published by the administration. The court held that this type of action is an unwarranted interference in the privacy of people and consequently is in violation of Article 21 of the Constitution of India.
The matter went up to the Apex court of the Indian judiciary. While hearing the matter the Solicitor General of India cited the judgment of the Supreme Court of the United Kingdom viz. in the matter of an application by JR38 for Judicial Review (Northern Ireland), (2015) UKSC 42, to justify the 'Name and Shame' banners publicized by the administration.
Solicitor General specifically highlighted paragraphs 2, 3 and 73 of the said landmark “Name and shame” judgment. The facts of the case are : Appellant was involved in serious rioting which took place in Derry in July 2010. Later on, the picture of him in the course of rioting was published in the two prominent newspapers, and the purpose was justified as to discourage the sectarian rioting. The appellant contended that this action by the administration violated his right under Article 8 of the European Convention on Human Rights (ECHR). The interference with Article 8 was held justified and completely legal by the Divisional Court and held this action as ‘Operational Exposure’.
The Article 8 of ECHR reads as follows:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. 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 others.
'OPERATION EXPOSURE' v/s 'NAME AND SHAME'
The operational exposure as per the Judges of the UK court is an investigation system and the purpose behind is to identify a crime suspect. As the Judges, Lord Clarke, Lord Toulson and Lord Hodge, observed “if the photographs had been published for some reason other than identification, the position would have been different and might well have engaged his rights to respect for his private life within article 8.1”. In other words, the police would have been justified in publishing a person’s photo, if they were unable to recognize the suspect. Whereas in the Indian case, the administration put up the personal details of more than 50 protesters, accused of the vandalism of the public property. The purpose here was to make them pay the compensation and if they failed to do so, the next step would be confiscation of their property. The objective behind the two acts was different. The former one was for the purpose of investigation while the later one was to name and shame those people violating their right to privacy.
VIOLATION OF INTERNATIONAL TREATIES
Article 17 of the International Covenant on Civil and Political Rights states about the right to privacy, it says "No one shall be subjected to arbitrary or unlawful interference with his privacy, family, or correspondence, nor to unlawful attacks on his honour and reputation". Whereas Article 12 of the Universal Declaration of Human Rights 1948, states "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks". Both treaties provide the right to privacy to the citizen, and the states, who are signatory to it, must fulfil these rights.
Since India is a signatory to the International Covenant on Civil and Political Rights and Universal Declaration of Human Rights, 1948, India has the obligation to enforce these rights. The recognition of privacy as a fundamental constitutional value is part of India’s commitment to a global human rights regime. Article 51 of the Indian Constitution, which forms part of the Directive Principles, requires the State to endeavour to “foster respect for international law and treaty obligations in the dealings of organised peoples with one another”.
A nine-judge bench of the Supreme Court of India in its landmark judgment of Justice K.S. Puttaswamy v. Union of India ruled that right to privacy is a fundamental right and is ‘intrinsic to life and liberty’ which is protected under fundamental rights enshrined under Part III of the Indian Constitution. In para 446 of the judgement, the Supreme Court has observed that: “it stands established, without any pale of doubt that privacy has now been treated as a part of the fundamental rights. The Court has held that, in no uncertain terms, that privacy has always been a natural right which is given an individual freedom to exercise control over his or her personality. The judgement further affirms three aspects of the fundamental rights to privacy, namely: (i) Intrusion with an individual’s physical body; (ii) Informational privacy; (iii) Privacy of choice.”
The Court had further noted that privacy deals with the person’s reputation. “In this manner, it protects a person by giving her control over the dissemination of material that is personal to her and disallowing unauthorized use of such information by the State.” The current action of the administration where they put on display the names and photos of people involved in certain unlawful activities violate International treaties and India’s domestic laws. It also certainly violated the Fundamental right as there was "unwarranted interference in privacy”.
This article makes it clear that judgment on which Solicitor general was placing heavy reliance can’t be used as persuasive judgment as the context of publishing photograph was to identify the protestors and in the current case the rioters had already been identified by the Administration. The action falls under the category of ‘Name and shame’. This act of the administration displays gross violation Fundamental Rights of Indian citizen as well as International treaties pertaining to the personal life and reputation.
The former UN Special Rapporteur on freedom of expression Frank La Rue has stated, “freedom of expression is not only a fundamental right but also an “enabler” of other rights, including economic, social and cultural rights, such as the right to education and the right to take part in cultural life and to enjoy the benefits of scientific progress and its applications, as well as civil and political rights, such as the rights to freedom of association and assembly…. Arbitrary use of criminal law to sanction legitimate expression constitutes one of the gravest forms of restriction to the right, as it not only creates a ‘chilling effect,’ but also leads to other human rights violations.” Therefore, such action of the government will lead to the suppression of dissent as well as harm to the personal reputation too.