Banners displaying anti-CAA protesters
Banners displaying anti-CAA protesters
Litigation News

Name and Shame Banners: Privacy Rights waived when people indulge in destruction of public property, UP Govt [Read Petition]

"The right to privacy is a qualified right, which can be voluntarily waived at the behest of its holder… when individuals participate in destruction and loss of public property...", the plea states.

Shruti Mahajan

Just days after the Allahabad High Court passed an order directing the Uttar Pradesh authorities to take down the name and shame banners of anti-CAA riot accused persons from Lucknow citing their right to privacy, the State of UP approached the Supreme Court in appeal arguing that this right would stand waived in certain circumstances.

The order of the Allahabad High Court for removal of these controversial banners hinged, inter alia, on the right to privacy of the persons appearing on these posters.

The State of Uttar Pradesh had now challenged this order primarily on the contention that there was no violation of the right to privacy of the accused persons, as they have waived this right.

To justify the erection of the controversial banners, the State has not only contended that these persons were found guilty of destruction of public property by a competent authority, but has also gone ahead to imply that right to privacy was waived by such persons.

Right to privacy is a qualified right and can be waived by the right-holder, the State has argued in its plea. Defending the State's action, the petition states that an urgent intervention by the state may be required at times when "individuals participate in destruction and loss of public property, which may further encompass long term consequences upon the citizens of the State."

When a person indulges in activities in public places, that may be equipped with video cameras, his acts are caught on camera and further probe to be published and exhibited by the media. In such circumstances, the person waives his right to privacy, the State of Uttar Pradesh has contended.

"The right to privacy is a qualified right, which can be voluntarily waived at the behest of its holder… when individuals participate in destruction and loss of public property, which may further encompass long term consequences upon the citizens of the State and beyond, at a public place, equipped with camera’s etc. they voluntarily waive their right to privacy by indulging in activities which may require urgent State intervention."

Uttar Pradesh Government

To cite an example, Solicitor General for India Tushar Mehta today argued for the State before the Vacation Bench of Supreme Court that if a person wields a gun in a public place and this act is caught on camera, this person cannot later claim right to privacy.

The petition further states,

"Equity cannot be bestowed upon those who involve themselves in inequitable conduct, as the conduct, whereby individuals enter public space/domain, for purposes which are susceptible to State scrutiny voluntarily waive their right to privacy."
Uttar Pradesh Government

The petition also seeks to place reliance on the Supreme Court's judgment in the 1994 case of R. Rajagopal vs State of Tamil Nadu, which, the petition states, "set a benchmark on the issue of voluntary waiver of right to privacy as an exception to the right to privacy."

This case, popularly known as the Auto Shankar case, was subsequently affirmed by the nine-Judge Bench in the KS Puttaswamy judgment, which had held that right to privacy is a fundamental right under Article 21 of the Constitution.

To buttress their arguments regarding the recognition of waiver of rights to privacy, the state has also cited the US case of Gruss v Zwirn and the Irish case of Fyffes v DDC.

On the other hand, the counsel representing individuals featured on these posters today questioned the State's authority in law to take a step of this nature and indulge in naming and shaming persons accused in a crime.

Such naming and shaming by the government will incite the public to indulge in activities that may be harmful for the persons accused, Senior Advocates Abhishek Manu Singhvi, Colin Gonsalves, and CU Singh told the Court today, when the matter was taken up for hearing. The law does not provide for authorities to resort to such steps, it was argued.

Following arguments today, the Vacation bench of Justices UU Lalit and Aniruddha Bose has referred the matter to be heard by a larger Bench. To this end, the Division Bench has directed for the file to be placed before the Chief Justice of India SA Bobde, so that a Bench of sufficient strength may be nominated to hear the matter in the week commencing on March 16, Monday

Read Petition:

STATE OF UP VS IN RE BANNERS PLACED ON ROADSIDE IN THE CITY OF LUCKNOW.pdf
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Read Order passed today:

State of UP vs In Re Banners placed on roads in Lucknow - 12.03.2020.pdf
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