On the 5^th of March 2020, authorities in Lucknow erected banners across major road crossings in the city, identifying several anti–CAA protestors allegedly responsible for vandalism and causing loss to public property. The banners go on to expressly state the personal details of several protestors including their pictures, names and addresses. The banners go on to state that the property of the accused will go on to be confiscated if they fail to pay the demanded compensation. A government spokesperson also went on to state that notices have been issued to all the accused.

After this move by the UP government caused much public furore, the Allahabad High Court took suo moto cognizance of the matter in a PIL and ruled the hoardings to be unjust and ordered the government to take down the billboards. The government appealed the decision to the Supreme Court and has as of now refused to take down the hoardings.

This piece aims to analyse the judgment and scrutinise critically the various facets of the judgment and understand what improvements may be made in the following Supreme Court proceedings.

What the judges held?

The concise judgment starts off by correctly identifying the matter to be in public interest jurisdiction and a matter which concerns not only the aggrieved whose names were displayed on the hoardings but as an issue which may have graver implications on the public at large.  The judgment is one of the first ones in the country which uses the doctrines introduced in the landmark K S Puttaswamy case to uphold the right to privacy of the citizen.

The grounds based on which the move failed the scrutiny of the court were: legality, legitimate aim and proportionality. The judgment brings to attention that there was no statute or law that the government relied on in order to have carried out such a move; thereby challenging the ‘legality’ of the move. Furthermore, it went to state that in order to pass the test of a legitimate aim, the action of the government must be a ‘necessity’, a requirement the Advocate General’s defence failed to justify. With its masterful use of the ‘test of proportionality’, it goes on to highlight the lack of a rational nexus between the deterrence the government seeks to achieve and the display of personal details in the public sphere.

It, therefore, serves as a model to other courts across the country on how to uphold privacy and how to effectively use the various tests laid down in the Puttasawamy case.

The Chilling Effect:

While the judgment discussed extensively the concept of privacy, its various implications and uses effectively the findings of the Apex Court in K S Puttaswamy to find the erection of the hoardings unconstitutional and in contravention of Article 21; it left largely unaddressed the impact the hoardings have on the freedom of expression of the protestors.

As article 19(1) (a) and (b) guarantee all citizens the right to freedom of speech and expression and the right to assemble peacefully, it may also be contended that these hoardings also go on to hamper the ability of citizens to go on and exercise these rights. The Advocate General while going to defend the government in court went on to state that the intention behind the hoardings was to ensure a ‘deterrent effect’, so as to discourage protestors from damaging public property. This shows a clear ability of the state in understanding the impact of societal pressure; where the underlying assumption behind such executive action was that such ‘naming and shaming’ would result in embarrassment or societal pressure on these individuals which would result in these individuals refraining from damaging public property. Irrespective of guilt, as held in the judgment, this is a violation of Article 21 which guarantees implicitly both privacy and a life and a life with respect and dignity.

However, additionally, since none of the protestors who have been named in the hoardings are proved to have caused the damage the government claims them to have caused, it is reasonable to assume that the hoardings also may have the effect of creating a sense of inhibition among the protestors who voiced their dissent in a lawful and peaceful manner. It gives rise to a fear in all rational protestors that the government may arbitrarily air their private details to the public at large, without having to prove their guilt and possibly exposing them to everything from societal scrutiny to legitimate threats on their person, in a country where mob justice is not unheard of.

Allowing the State to carry on such action affects adversely the ability of citizens to exercise the fundamental rights guaranteed under Article 19 and is a troubling precedent set forth by the UP government. This can thus be said to have a chilling effect on the exercise of the right to freedom of expression and the right to assemble peacefully. This gives rise ample space for the judiciary to have applied the Chilling Effect doctrine which legal scholar Gautam Bhatia, explains as follows; ‘governmental (or private) activities of nature that – while not directly censoring free speech – nonetheless have the impact of self-censorship.’

While this is a recognised doctrine in foreign jurisdictions like the USA, it has found very limited usage in Indian jurisprudence, with the Delhi High Court being the only court in the country have applied it in the context of the freedom of speech and expression. One of the cases, where the doctrine was addressed is the famous libel case, Ram Jethmalani v Subramaniam Swamy, where the Delhi High Court found that if a person was always under the fear of being sued, she may not exercise her right thereby leading to the death of public discourse. By no means, however, is the chilling effect only limited to only acts of direct state persecution; it extends to anything and everything which may go on to create a sense of trepidation in the head of an individual going to exercise her right. The US Supreme Court had found, as early as 1965, in Lamont v. Postmaster General  that requiring members of the public who read communist literature to register themselves with their local post office was subject to the chilling effect where consumers of the same may have been deterred from such consumption, knowing that a State which was against communism, possessing such information made them easy targets. It, therefore, covers anything which may have an inhibiting effect on the public.

Conclusion

The Allahabad High Court judgment is itself a shining example of how the Judiciary should model its reasoning and adjudication on issues of privacy in the post-Puttaswamy era. However, it was a missed opportunity to incorporate the much needed Chilling Effect doctrine in a country which has been consistently trying to stifle dissent. While the hoardings may be ordered to be removed solely on the grounds of them being in violation of the privacy guaranteed by the Constitution, it is important for the Judiciary of the country to acknowledge that this move is merely a reflection of an even more problematic culture in which governments often force their own people to doubt their own choices and prevent them from freely exercising choices that they are entitled to. That the doctrine still struggles to find space in Indian jurisprudence while it has developed and found wide-spread usage across the world, is indicative of the fact the Indian Judiciary is yet to recognise the various subtle ways in which the rights of the public may be trampled upon.

ABOUT THE AUTHOR

Aditya Pattanayak

Aditya Pattanayak is a second-year student at RMLNLU Lucknow. His interests lie in the field of Constitutional Law and Public Policy.

Ishika Chauhan

Ishika Chauhan is a first-year student at RMLNLU Lucknow. She takes an avid interest in Constitutional and Corporate Law.