Political Diary

New Delhi, 17 March 2020

Name & Shame

WHAT’S PRIVATE ABOUT RIOTING?

By Poonam I Kaushish

In this scary season of corona virus political UP is in the eye of the storm over its unprecedented move by putting up posters and hoardings of 57 alleged rioters who vandalized public property during anti-CAA protests in Lucknow December last resulting in large-scale violence and a brutal police crackdown leaving in 18 deaths. Succinctly underscoring, your freedom ends where my nose begins.

In a suo moto action the Allahabad High Court made two significant observations: There is no legal basis to allow such banners and they violate the fundamental right to privacy under Article 21 of the Constitution. Ordering they be taken down forthwith.

The action shifted to the Supreme Court which dubbed the UP Government's move to “name” and “shame” as a “drastic step” especially since the process of determining their liabilities was yet to attain judicial finality and refused to stay the Allahabad Court order. More so, as the State’s decision was not backed by any existing laws,

Further, it repeatedly asked UP what law gave it the power to publicly shame people and averred that while an individual could commit any act that is not prohibited by law, a State could take only actions that are expressly sanctioned by law. Adding, this was a crucial aspect of the rule of law to protect the individual from the might of the State apparatus and no democracy can afford to punish people without a due process of law. But it referred the issue of privacy to a larger Bench.

The UP Administration in its defence argued that citizens waived their right to privacy by committing an act in public. Asserting the posters would act as a “deterrent” for the future and the court should not interfere in such a matter as the accused had damaged public and private property and would have to pay compensation failing which their property would be confiscated.

Countered a social activist, not even offenders of serious crime are subject to such treatment as has been meted out against these people accused of vandalism. The motive strikingly appears to be that of vengeance. No State Administration should pursue these steps to achieve moral ends of effective deterrence.

Added another, at a basic level, it is ridiculous to “name and shame” persons as perpetrators of a public wrong without a trial and without demonstrating that the accused persons committed legal offences through their actions. In fact the State’s power to maintain law and order, however broad, cannot be permitted to violate fundamental rights.

Pertinently, the act of naming and shaming in public isn’t new. In March 2018, the Finance Ministry had asked banks to publish names and photographs of willful defaulters in newspapers. Earlier, the Women and Child Development Ministry had called for establishing a national register of sex offenders, which would contain names and other details of convicted rapists in January 2017.

True, in a narrow political sense, the rioters can take umbrage that it invades their privacy, imperils their safety and reeks of vindictiveness as they are being vilified as “anti-nationals”, thereby, underlining the Yogi Government’s intolerance to protest and dissent. Unlike other States which have responded positively to the anti-CAA mobilizations. Its another matter that the Samajwadi has joined the poster slugfest by putting up posters of BJP rape accused MLA Sengar and ex Union Minister Chinmayanand.

However, it raises two important issues. One, what is the dividing line between public and personal life? Can one be ethical in public if unethical in private? Is one’s private life any concern of the people? What is the barometer to check morality and probity?

Two, the Prime Minister Modi often emphasises that even as every citizen enjoys his fundamental rights, at the same time he also has certain fundamental duties and obligations which he owes to the nation. Reiterating Gandhi’s assertion, “We cannot preserve our rights without fulfilling our responsibilities. We can only expect all rights when we perform our duties to perfection,” NaMo states that “duties and rights were directly linked and go hand-in-hand.”

Recall, there were no fundamental duties chapter in the Constitution but it was introduced through the 42nd Amendment in 1976 in the middle of Emergency as Part – 4A by then Prime Minister   Indira Gandhi. It entails among others, protecting the sovereignty & integrity of India, duties towards fellow citizens and society, adhering to spirit of common brotherhood, preserving composite culture and safeguarding public property.

Till date, the issue of privacy only covered our netagan but today the UP hoardings herald a paradigm shift in political thinking. Whereby, the Government has intertwined a citizen’s right to privacy with his fundamental duties to the State to ensure he does not take refuge under his rights to commit various acts of misdemeanor in the public domain. .

Additionally, just as a leader has to pay the price of his privacy once he enters public life which demands accountable to the people, the same holds true of any citizen who transcends in to public domain. The sit-out at Delhi’s Shaheen Bagh is a classic example where citizens have abdicated their duty to fellow citizens resulting in untold misery for the public at large. Or, the violence which has unleashed in various State over CAA and NPR.

Hence, it stands to reason when the State highlights that the citizenry too has responsibilities to the State. One certainly cannot run amuck and destroy public property at will. After all, everything belongs to the public as a whole.  

Perhaps, this is one factor why the Constitution framers did not add any provision for privacy, unlike in several other countries. In Britain there is no right to privacy and, therefore, there is no right of action in the courts for breach of privacy. In America, the Press is allowed to publish almost any true material about public figures on the ground that “virtually all human activity reveals the true character of the person”.

Besides, in an era of omnipresent social media which can be judgmental and vicious it has created a new sort of shame culture. The world of Facebook, Instagram and the rest is a world of constant display and observation. Twitter can erupt in instant ridicule for anyone who stumbles. The desire to be embraced and praised by the community is intense. People dread being exiled and condemned. Moral life is not built on the continuum of right and wrong; it’s built on the continuum of inclusion and exclusion.

Consequently, in a milieu where good governance and accountability is the hallmark of Government, the aam aadmi has a right to know the truth and an effort made to reveal truth is never wrong as these are vital components of strengthening the roots of society and democratizing the system at the grass root level. Sure, one can protest against State actions but it should be peaceful. No longer should anybody be allowed to hide behind the veil of privacy.

In sum, the country needs to find a fine balance between street power and duties and responsibility. Plainly, the rioters should not be allowed to go unpunished. The time for citizens to change their mindset and realize alongside their fundamental rights as we also have our duties to the State. 

Clearly, we need to cry a halt to increasing degradation by conducting our own due diligence, else we lay the foundation for a weak and pliable nation. The UP Government has shown the way to hold rioters accountable for their violence. A first towards a peaceful free India where it’s democracy comes first. Can anyone argue with this? ----- INFA.

(Copyright, India News & Feature Alliance)