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)
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