On Wednesday, the Supreme Court of India yet again demonstrated its reluctance to decisively safeguard individual liberty.
Last week, the Allahabad High Court, in a well reasoned order, asked Uttar Pradesh’s Bharatiya Janata Party-led Adityanath government to remove banners it had put up to publicly shame people it has accused of participating in violence during protests against the Citizenship Amendment Act. The people featured on the banners had been asked by the state to pay compensation for damage caused to public property.
The High Court made two significant observations: there is no legal basis to allow such banners and they violate the fundamental right to privacy.
The High Court had done what any constitutional court was expected to do. It saw excessive and arbitrary use of power by the state and registered a case on its own. When the state failed to convince the court about the legality of its action, the judges set a deadline of March 16 for the banners to be removed.
The Adityanath government quickly moved the Supreme Court, which is currently on a break for Holi. The court took up the matter on an urgent basis on Wednesday.
During the hearing, the Supreme Court made all the right noises. It repeatedly asked Uttar Pradesh what law gave it the power to publicly shame people. It told the state that while an individual can commit any act that is not prohibited by law, a state can take only actions that are expressly sanctioned by law. This is a crucial aspect of the rule of law to protect the individual from the might of the state apparatus.
But as it has been the case in several recent instances, the Supreme Court buckled at the end. It did not follow those comments with the right decision. Instead of asking the state government to pull down the banners and fulfill the directions of the High Court, the Supreme Court bench decided that there were larger questions of law involved in the case so a larger bench would have to deal with it. It has now posted the matter for March 16.
Though it did not stay the High Court order, the fact that it is now seized of the matter will act as a serious restriction on the High Court to ask the state to implement its orders.
Defending the state’s decision, Solicitor General Tushar Mehta, instead of demonstrating to the court what legal basis the state had to issue orders to put up banners, began quoting cases in United Kingdom to justify them. He also claimed that if people commit violence, they waive their right to privacy.
Those who have been publicly shamed on the banners have only been accused of committing a crime but no court has confirmed their role in the violence. In fact, in many cases, the time given by the state itself for these people to pay damages is yet to be exhausted. No democracy can afford to punish people without a due process of law.
In fact, even if a court declares them guilty, the appropriate measure would be to convict them or impose penalty according to law. The state cannot exercise its powers to punish in a manner not supported by law. This is a serious infringement into liberty and right to privacy as it exposes the alleged violators to ridicule and violence.
By failing to ask the state to immediately pull down the banners like the High Court did, the Supreme Court has let the state sustain an illegality of serious proportions. Even if larger questions of law had come up, nothing stopped the court from asking the state government to remove the banners till these questions were answered.
The reluctance of the court to stand in aide of individuals and their rights is emboldening the executive to undermine fundamental rights. This is also seriously degrading the trust that Indians have in the Supreme Court.