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“Bad laws are the worst form of tyranny”
– Edward Burke.
Uttar Pradesh Cabinet has approved an ordinance making sweeping and arguably unconstitutional changes to The U.P. Prevention of Cow Slaughter Act, 1955 (hereinafter the “Act”). The new amendments point towards a blatant disregard by the Uttar Pradesh Government of the principles of privacy enshrined in the Constitution and also go against some of the recent orders passed by the Hon’ble Allahabad High Court and the Hon’ble Supreme Court. In this article, the author attempts to analyse the constitutional validity of the impugned Ordinance.
Problems with the 2020 Ordinance of the U.P. Prevention of Cow Slaughter Act, 1955
As per the notification, the name and photo of the person accused of violation of section 5 of the Act will now “be published at any such important place in the locality where the accused normally resides or at such public place where he hides himself from the law enforcement”.
The important word to focus on here is ‘accused’. Therefore, now even those merely accused and not even convicted will have their personal information plastered across in public places for everyone to see. This is highly problematic as it openly invites hatred, social stigma and ostracism of the person so accused as well as of their friends and family. It makes it ever so easier for cow-vigilantes to take the law in their own hands as the state itself facilitates the identification of those accused of cow-slaughter.
Moreover, this decision of the state flies in the face of the Allahabad High Court’s (hereinafter “HC”) order in In-Re Banners Placed On Road Side In The City Of Lucknow v State of UP (hereinafter “Re Banners”), where the Court had declared UP Government’s similar act of putting up roadside banners with name and other personal information and photographs of those merely accused of violence during CAA-protests to be illegal. The HC held the act illegal primarily on the basis that at the time, there existed no law which allowed for the same. The court also found that the act failed to pass the threefold test laid down by the Hon’ble Supreme Court in the Puttaswamy judgment. The court termed the action to be an absolute encroachment of personal liberty and a gross invasion of the privacy of the accused, terming the State’s actions “an unwarranted interference in privacy of people” and “in violation of Article 21 of the Constitution of India”. The HC ordered the immediate removal of the banners. On appeal, the vacation bench of the Supreme Court refused to stay the HC’s order while referring the case to a larger bench. The matter is currently sub-judice.
Owing to the similarity between the two situations, the constitutional validity of the newly introduced provisions in the Act can be analysed by using the tests applied by the Hon’ble Allahabad HC in Re Banners.
The Threefold Test of Puttaswamy
Going by the test prescribed in Puttaswamy and duly used by the Allahabad HC in Re Banners, the first test that the new provision must pass is that of legality, which postulates the existence of a law. Now, admittedly here the situation of the Ordinance differs from Re Banners, as the State has legitimately and duly passed a proper Ordinance, ‘technically’ giving it the legal authority to go ahead and publish the information of those accused of cow-slaughter.
However, the Supreme Court in Maneka Gandhi Case held that in order for a state action to validly place restrictions on a citizen’s right to life and liberty, it must be backed not only by a ‘procedure established by law’ but by the ‘due process of law’.
In keeping with this, in Puttaswamy, the Court observed “the limitations which operate on the right to life and personal liberty would operate on the right to privacy. Any curtailment or deprivation of that right would have to take place under a regime of law. The procedure established by law must be fair, just and reasonable.”
Thus, the mere existence of a law doesn’t necessarily make either the law or the actions of the state on the basis of such law, inherently legal. Further, in the famous case of Kharak Singh, the Supreme Court struck down clause (b) of Regulation 236 of the U.P Police Regulations, declaring it unconstitutional against Article 21, on the ground that it was violative of a citizen’s personal liberty and privacy, and interfered with a citizen’s right ‘to be left alone’. Justice Subba Rao, in his minority judgement had gone as far as scrapping the whole of Regulation 236 due its violative nature in relation to an individual’s right to liberty.
In regard to the above, the newly introduced provisions can clearly be seen to be in violation of Kharak Singh, as even here the personal information of the accused, is being put out in the public for everyone to see. This creates a situation where those accused of cow-slaughter will have the sanctity and safety of their private spaces potentially destroyed by anti-social elements and cow-vigilantes. A law which puts the life and personal property of a mere accused in such jeopardy can hardly be called fair or just or reasonable. Thus, the ordinance fails to fulfil the first test of legality.
Under the second test, i.e. the legitimate state aim test, one must analyse whether the law passed by the state or any of its actions help to legitimately further the aims of a democratic society or the State. In Re Banners, the court observed “On scaling, the act of the State in the instant matter, we do not find any necessity for a democratic society for a legitimate aim to have publication of personal data and identity. The accused persons are the accused from whom some compensation is to be recovered and in no manner, they are fugitive.”
The court had further observed “No other power is available in the Code (Code of Criminal Procedure, 1973) to police or the Executive to display personal records of a person to public at large. There are certain provisions empowering the investigating agencies or other Executives to take picture of accused for the purpose of their identification and record but that too is not open for publication. The only time these photographs be published is to have assistance in the apprehension of a fugitive from justice.”
As per Malak Singh v State of Punjab and Haryana, even in the case of history sheeters, information about the history sheet and the surveillance has to be kept discreet and confidential and cannot be shared with the public or even be posted at police stations. This is in order to protect the privacy and dignity of an individual which is guaranteed to them under right to life by Article 21, as held in Puttaswamy case. Thus, when even those with a proven criminal record have been found to be deserving of their privacy and dignity; to malign the image of a mere accused in the society by openly putting out their names and other information for everyone to see is quite a disturbing provision to be introduced.
In light of the above judgments, the proposed action of the newly brought amendment fails to qualify the test of legitimate aim. Similar to the case of Re Banners, there is no necessity whatsoever to publish the personal data and identity of those accused of cow-slaughter, unless and until they are fugitives who need to be apprehended.
The third test is that there should be a rational nexus between the object and means adopted to achieve them and further analysing the proportionality of the extent of interference in relation to its need. Going by the response of the State of U.P in Re Banners, where it had contended that the object of putting up the personal information of those accused of CAA protest related violence was ‘only to deter the people from participating in illegal activities’, the court had observed:
“...learned Advocate General failed to satisfy us as to why the personal data of few persons has been placed on banners even though in the State of Uttar Pradesh, there are lakhs of accused persons who are facing serious allegations pertaining to commission of crimes whose personal details have not been subjected to publicity. As a matter of fact, the placement of personal data of selected persons reflects colourable exercise of powers by the Executive.”
The objective of the Ordinance is to make the Act more effective and eradicate the crime of cow-slaughter. However, in the light of the observations of the Hon’ble HC in Re Banners, one fails to understand the reasoning behind the publicity of the personal data of only those accused of cow-slaughter. Whereas, no such special provision is attached to many more heinous crimes . Indeed, the placement of personal data of only those accused of cow-slaughter does reflect ‘colourable exercise of powers by the Executive.’
Thus, it can be clearly seen that provisions brought in by the Ordinance to the UP Cow Slaughter Prevention Act fail miserably at the threefold test prescribed by the SC in Puttaswamy for a law or state action to be able to validly and legally encroach on a citizen’s Right to Life and Liberty.
The newly introduced provisions of the Ordinance have a direct implication on the privacy of the accused. Putting out and making public, sensitive and personal information of the accused not only has the potential of bringing his/her reputation into disrepute but also putting his/her life at risk. When the decisions of the Allahabad HC in Re Banners and of the Supreme Court in Kharak Singh, Malak Singh and Puttaswamy, among others, are taken into context, it is quite evident that the provisions newly introduced to the Act are violative of the accused person’s right to privacy guaranteed to them under Article 21, in a manner established by law that appears to be neither fair, nor just nor reasonable.
Moreover, the ordinance has major potential of misuse and of enabling cow-vigilantes to take the law into their own hands. Thus, the Ordinance is not only unconstitutional but also endangers the reputation, property and lives of the citizens.
Though the author is of the firm belief that the ordinance passed will be held unconstitutional and illegal if and when challenged in court, going by the similarities between the new provisions and the issue in Re: Banners on Roadside, and the subsequent decision of the court; one major differentiating factor between the two is that unlike in Re: Banners, where the actions of the state did not have any backing of a duly passed law, this time around the state government has passed a legitimate ordinance to give backing to its plans. What remains to be seen and will be highly interesting to witness is whether this time around the courts will hold the public display initiative to be legal and valid due to it having sanction of a duly passed law; or will it, as the author believes, go into the merits of the law so passed and declare such a law and any subsequent actions derived from it as illegal and unconstitutional?
(This post has been authored by Aryan Ahmed, a Second Year law student at Dr. Ram Manohar Lohiya National Law University, Lucknow)