Kanwar yatra food directive is unconstitutional – and the police know this

A police directive in Uttar Pradesh’s Muzaffarnagar district asking eateries and food stalls along the Kanwar Yatra pilgrimage route to display the names of their owners and staff has sparked outrage.

Political leaders, civil rights activists and lawyers have criticised the directive as unconstitutional and discriminatory. Many have asked under which law have the police issued the instructions.

As it turns out, the police have not invoked any law – they have cleverly avoided issuing a formal written order on the matter.

A statement of the Muzaffarnagar police circulating on the internet states that the managers of food outlets along the Kanwar yatra route have been “requested” to “voluntarily” display the names of their owners and staff. However, the very next sentence in the statement refers to this as an “order”.

Speaking to television crews, Abhishek Singh, Muzaffarnagar’s senior superintendent of police, too used similarly ambiguous language. Singh said that food vendors have been “instructed” to display the names of the owner and staff and that everyone is “voluntarily” following these instructions.

In India, where the police have a track record of using extraordinary coercive powers over citizens both within and outside the bounds of law, citizens realistically have no choice but to follow such advisories.

However, in the absence of a written order, it is harder to challenge such a directive in a court of law.

A written order would have to indicate the law under which the police is empowered to issue a particular directive, Delhi-based senior advocate Mohan Katarki told Scroll.

But in the case of an oral directive, the question of whether it was even issued by the police can become a contested issue in court, Katarki pointed out.

“Only if the police admit that they issued a particular order would the court ask them to justify the legality of their instructions,” said Katarki.

Former Inspector General of Police in Uttar Pradesh and political and social activist SR Darapuri told Scroll: “A written order can be judicially questioned but an oral order may simply be disavowed by the police later.”

Delhi-based senior advocate Sanjay Hegde said challenging oral police instructions would be considerably more time-consuming than challenging a written order.

“One would have to record all the instances of the impugned oral order being enforced by the police,” he explained.

Violative of rights

The police directive has been criticised for effectively violating the fundamental rights to equality, non-discrimination and privacy guaranteed under the Constitution.

There is no legal requirement for any restaurant or vendor to publicly display the names of their owners and staff. Asking for such a disclosure arguably violates the right to privacy, which is part of the rights guaranteed by Article 21 of the Constitution, of those whose names are put out, Hegde told Scroll.

As far as the contentions of equality and discrimination are concerned, it is true that superficially the directive has nothing to do with religious identity or minority groups. In the written statement, Muzaffarnagar police claim the intention is not to create a religious divide but to ensure the well-being of devotees, called Kanwariyas, who abstain from certain food items in the holy Hindu month of Shravan while walking hundreds of kilometres to collect water from the Ganga and carry it back to their villages and towns.

However, it is important to keep in mind the context of the police directive. On July 16, a local Hindu priest wrote on his Facebook account that he had been promised by the Muzaffarnagar district administration last month that “all Muslims would write their Muslim names in bold letters on their hotels, dhabas, tea and sweet shops, and fruit and vegetable carts”. This directive was the fulfilment of the directive, he wrote.

Muzaffarnagar MLA and Uttar Pradesh minister Kapil Dev Aggarwal has also specifically referred to Muslim-owned businesses in the area earlier this month, saying that they should not name their shops after Hindu deities.

In such a context, the directive will only lead to discrimination against, and economic boycott of, Muslim vendors, Darapuri said.

The economic boycott of any religious group is unconstitutional, Lucknow-based human rights activist Rajeev Yadav told Scroll.

Katarki explained, “If there is a general law mandating that all shop owners must display their names on a board, there is nothing wrong in such a law since it apparently promotes transparency.”

He continued: “However, the concerns of minorities should be considered since they could face economic boycott or be targeted during the time of communal violence.”

Hegde agreed. “The directive may seem neutral but it is its actual effect on Muslim vendors that will need to be examined,” he said.

Incomprehensible rationale

According to the Muzaffarnagar police superintendent, the directive was issued in the interest of securing law and order, since conflicts have broken out in the past on the question of food served along the Kanwar yatra route.

Local activists and politicians that Scroll spoke with pointed out several holes in this rationale.

“The identity of a food vendor is irrelevant to law and order,” said Darapuri. “What is the threat posed to law and order currently and how will the display of names by vendors solve this threat?” he questioned.

“This is a naked display of communalism in police,” he said.

According to Yadav, “The problem of law and order seems to be posed by Kanwar yatris wanting to eat only at Hindu-owned eateries.”

Shahnawaz Alam, the chairperson of the Congress party’s minority cell in Uttar Pradesh, warned that the police directive provided a logic for violent attacks on Muslim food vendors. In the absence of any written order or guidelines or even legal basis, “someone may easily attack or harass a Muslim vendor under the guise that they have displayed names incorrectly”.

Alam said that the Allahabad High Court or the Supreme Court should immediately take note of what he described as an effort to “implement an apartheid system”.

Saket Gokhale, All India Trinamool Congress MP in Rajya Sabha, has written to the National Human Rights Commission on July 18, asking it to take cognisance of police directive.