On Thursday, 12 March, the Supreme Court heard an appeal by the Uttar Pradesh government against the Allahabad High Court order directing the Lucknow administration to remove banners of those accused of vandalism during anti-CAA protests.
Observing that the matter “involves issues which needs further elaboration and consideration,” the vacation bench of Justices UU Lalit and Aniruddha Bose referred it to CJI SA Bobde to list before a larger bench. In view of the urgency of the case, they also asked that it be listed as early as possible next week.
The apex court has not stayed the Allahabad HC’s order of 9 March, which directed the Lucknow DM and police to take down the banners (and prohibited them from putting up such hoardings elsewhere in the state as well).
This means that technically, the high court’s order needs to be obeyed by the UP government in the interim, including the the submission of a compliance report to the high court by 16 March.
However, UP advocate general Raghavendra Singh has indicated that the UP authorities don’t see a need to remove the hoardings because of the reference to a larger bench, as it would render the matter in the Supreme Court infructuous.
The hoardings put up by the UP government in Lucknow carried the names, addresses and photos of those accused of violence during anti-CAA protests. The high court held last week that the move was an “unwarranted interference in the privacy” of these people – none of whom have been convicted of a crime.
On Thursday, the apex court heard the UP government’s arguments against the order, presented by Solicitor General Tushar Mehta, who argued that "the right to privacy has several dimensions" and was waived by criminals and those indulging in violence.
"Suppose media shows two persons who are wielding guns in public, they can’t claim their right is infringed,” Mehta said, adding that “They have waived their privacy."
Justice Lalit responded to it by saying it’s different when a private individual does that. But question here is whether the state has a right to say all of it.
“As of now, there is no law that can back your (UP government) actions.”Justice Lalit
Justice Bose also pulled up the UP govt and said "state's actions should be empowered by the law".
However, the judges eventually accepted that because of the questions of law raised by the Solicitor General – based on his reading of the landmark right to privacy judgment and the 1994 decision of the Supreme Court in the Auto Shankar case, as well as a judgment of the UK Supreme Court – that more than two judges would be needed to decide the issue on whether the fundamental right to privacy was violated here.
This was strongly opposed by senior advocates Abhishek Manu Singhvi, Colin Gonsalves and CU Singh, who were appearing for some of the people whose details have been posted on the hoardings, who argued this move of the government put them at risk of being lynched.
They also pointed out that they have not been convicted by a court of any crime, and that there was no law in force which allowed the UP government to put up what they themselves were calling ‘name and shame’ banners.
The judges allowed the persons whose photos and details have been put up on the banners to implead themselves in the case, and noted that the case should be heard by a larger bench with some urgency. They did not agree to allow ‘unaffected parties’ ie people/organisations who are not named on the posters, to be made part of the case.
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