State-sponsored Doxing: Is it even legal? A closer look at the legal provisions surrounding revealing private information of individuals

22, Jun 2022 | CJP Team

Doxing (sometimes spelt as doxing) is a well-recognised term for publishing and revealing private and identifying information (about an individual/set of persons), on the internet with malicious intent. The purpose is usually to humiliate or harass the victim or accused.

Shockingly, the recent actions of the Jharkand Police are an unfortunate example of what appears to be state-sponsored doxing. These acts that are clearly violative of the values and principles contained within the Indian Constitution. The practice of putting names of the accused persons on the flysheet board at police stations without issuance of any proclamation (that required a rigorous due process to be followed as in the case of hardened economic or criminal offenders who are absconding) is inherently derogatory to the concept of human dignity and privacy enshrined under Article 21 (protection of life and personal liberty) of the Constitution.

Privacy is a fundamental human right, enshrined in numerous international human rights instruments. It is central to the protection of human dignity, and forms the basis of any democratic society. It also supports and reinforces other rights, such as freedom of expression, information and association. Activities that restrict the right to privacy, such as surveillance and censorship, can only be justified when they are prescribed by law, necessary to achieve a legitimate aim, and proportionate to the aim pursued.

The Supreme Court of India (SC) in its acclaimed 2017 verdict, delivered by nine judges of the court (KS Puttaswamy v/s Union of India & Ors) clearly held, “The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.”

The Jharkhand police on June 14, 2022, released posters of those allegedly involved in the June 10 protests in Ranchi against ‘insulting’ remarks on Prophet Mohammad. These actions of the Jharkhand police were prompt responses to an open call given the day before, on June 13, 2022 Jharkhand Governor Ramesh Bais.

Ramesh Bais is an Indian politician serving as the 10th and current Governor of Jharkhand. He also served as the 18th Governor of Tripura in 2019. A member of the Bharatiya Janata Party (BJP), he had served as a Union Minister of State for Environment and Forests in Atal Bihari Vajpayee’s government from 1999. Under the Indian Constitution—Articles 154, 163 and 164 that lay down the roles and powers of the Governor, clear right of governance has been granted to an elected government provided it has a legitimate majority.

It is in a clear violation of the constitutional scheme, that Bais was speaking over the head of a constitutionally elected government addressed the state’s police directly with a direction! He told the state’s top cop and other senior officials to make details of the protester’s public. The Governor had also asked officials to display these posters at main places and thoroughfares of the city so that people could identify them and help the police. A day after the Ranchi Police, actually following these un-Constitutional diktats, released posters of those who were allegedly involved in the June 10 violence during protests against remarks on the Prophet, Rajiv Arun Ekka, principal secretary to Chief Minister Hemant Soren, ordered the Ranchi SSP to submit an explanation on reasons for doing so despite it “not being legal”.

In a letter to Ranchi SSP Surendra Jha, Principal Secretary Ekka, who is also the state Home Secretary, said, among other things that: “…posters of people part of violent protest were put up by Ranchi Police on June 14, in which many people’s names and other information have also been given. This is illegal and against the order of the Allahabad High Court in PIL 532/2020 dated March 9, 2020.” He asked the SSP to submit within two days an explanation. The illegal and unlawful acts of the Uttar Pradesh government then had been completely nullified and declared unconstitutional by the Allahabad High Court.

UP sets the unlawful precedent: 2020, 2022

The actions that inspired Bais into unconstitutional interference came from the U.P government’s playbook during chief minister, Adityanath’s first tenure. In 2020, in an act of public shaming, the district administration Uttar Pradesh had installed more than 100 hoardings, making public the images, names and addresses of all the protesters who had launched successful, citizen’s protests against the Citizenship (Amendment) Act/CAA, 2019. These persons were, in acts of sweeping, unverified state action, also “accused” of damaging public and private property during the demonstrations in Lucknow in December 2019. The administration had also put up some hoardings announcing the amount demanded from the 53 protesters in the Uttar Pradesh capital, also warning that “their properties would be attached if they failed to pay the recovery amount.”

The justification for such high-handed and malafide actions was strange. The Additional District Magistrate(ADM), Vishwa Bhushan Mishra –who at the fourth rung of the state’s judiciary is supposed to be equipped in knowledge of the law and the Constitution— said, “It was ordered that there should be proper publication of the fact that these people are guilty. Hence, it was decided to put up the hoardings so that these people may not escape after selling off their properties.” It was his court that had issued recovery notices against some protestors on February 13, 2020.

The move had attracted strong reactions, not only from those affected directly i.ethe protestors, but also from ordinary citizens, politicians, legal experts and social activists, who sharply criticised the idea of public shaming although some voices were in favour of the administration.

It was the state’s judiciary that had put a brake on the rank illegality. On March 9, 2020, a bench comprising Hon’ble Chief Justice Govind Mathur and Justice Ramesh Sinha in response to a public interest petition, ordered that the hoardings be pulled down. The bench held, “Privacy is a fundamental human right recognized in the United Nations Declaration of Human Rights, the international covenant on civil and political rights and many other international and regional treaties. Privacy underpins human dignity and key values of a democracy. Nearly every country in the world recognises the right of privacy explicitly in their constitution. In our country, where privacy is not explicitly recognized as fundamental right in the constitution, the Courts have found such right protected as an intrinsic part of life and personal liberty under Article 21 of the Constitution of India.”

The Allahabad High Court furtherheld, “As a matter of fact, the placement of personal data of selected persons reflects colourable exercise of powers by the Executive. In entirety, we are having no doubt that the action of the State which is subject matter of this public interest litigation is nothing but an unwarranted interference in privacy of people. The same hence, is in violation of Article 21 of the Constitution of India. Accordingly, the District Magistrate, Lucknow and the Commissioner of Police, Lucknow Commissionerate, Lucknow are directed to remove the banners from the road side forthwith. The State of Uttar Pradesh is directed not to place such banners on road side containing personal data of individuals without having authority of law. A report of satisfactory compliance is required to be submitted by the District Magistrate, Lucknow to the Registrar General of this Court on or before 16th March, 2020. On receiving such compliance report, the proceedings of this petition shall stand closed.”

Despite this sharp rebuke from the constitutional court in the state, a brazen state executive in UP, this time re-elected back to power, proceeded to follow the same pattern of illegality when it not just publicised identities, but alsodemolished homes of alleged protester accused in the violence that took place in Kanpur on June 3, 2022, and Saharanpur and Allahabad (Prayagraj) on June 11 and 12. On cue, came the call to action from a party member turned Governor in Jharkhand. The Jharkhand police on June 14, 2022 released posters of those allegedly involved in the June 10 protests in Ranchi against ‘insulting’ remarks on Prophet Mohammad. These were withdrawn the next day, after the state government reacted.

Which Laws do these actions violate?

  • Indian Constitution
  • Right to Privacy
  • Indian Criminal Law: Presumption of Innocence
  • Role of the Governor

 A. Indian Constitution and the Right to Privacy

Privacy is a right that all human beings enjoy by virtue of their existence. It also extends to physical integrity, individual autonomy, free speech, and freedom to move, or think. This means that privacy is not only about the body, but extends to integrity, personal autonomy, data, speech, consent, objections, movements, thoughts, and reputation. Therefore, it is a neutral relationship between an individual, group, and an individual who is not subject to interference or unwanted invasion or invasion of personal freedom. All modern societies recognize that privacy is essential and recognize it not only for humanitarian reasons but also from a legal point of view.

It was in the path-breaking Justice K.S. Puttaswamy v Union of India (2017) 10 SCC 1, judgement that the Supreme Court the Bench unanimously recognised a fundamental right to privacy of every individual guaranteed by the Constitution, within Article 21 in particular and Part III on the whole.

Article 21 has been widened with judicial interpretation over the decades. This widening of the scope of Article 21 particularly after the case of Maneka Gandhi vs. UOI 1978 SCC (1) 248.The Supreme Court has time and again laid down that Article 21 is the basic foundation of fundamental rights. Article 21 has proven to be multi-faceted. The scope of Article 21 has been widened by reinterpreting what constitutes life and liberty in specific circumstances. These terms, that is life and liberty, are not one size fits for all terms.

The right to life within Article 21 is freely interpreted and therefore, it includes all aspects of a life that makes a person’s life more meaningful and the right to privacy is one of these rights. This issue was first raised in Kharak Singh vs. the state of UP AIR 1963 SC 1295, the Supreme Court held that Regulation 236 of the UP Police Regulations violated the Constitution because it violated Article 21 of the Constitution. The Court held that the right to privacy is part of the right to protect life and personal freedom. In this case, the Court equated privacy with personal freedom.

In a historic decision delivered in the case of Justice K.S. Puttaswamy v Union of India (2017) 10 SCC 1, the Bench unanimously recognised a fundamental right to privacy of every individual guaranteed by the Constitution, within Article 21 in particular and Part III on the whole. The decisions in Kharak Singh was overruled.In Para 77 of the judgement Hon’ble Court held,“The right of privacy is a fundamental right. It is a right which protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices.” And in Para 88 held that “Let the right of privacy, an inherent right, be unequivocally a fundamental right embedded in part-III of the Constitution of India, but subject to the restrictions specified, relatable to that part. This is the call of today. The old order changeth yielding place to new.”Since the Justice K.S. Puttaswamy (2017) judgment, the fundamental right to privacy has been cited as precedent in various landmark judgments, such as the Navtej Johar (2018) 10 SCC 1.

In thecase of Navtej Singh Johar Vs. Union of India (2018) 10 SCC 1, the Apex Court held that the guarantee of a fundamental right to privacy in Justice K. S. Puttaswamy (Retd.) vs Union Of India2017 finding that Section 377 affected only a ‘miniscule minority’ cannot be the basis to deny the right to privacy. It observed that minorities face discrimination because their views and beliefs do not align with the majority. Justice Indu Malhotra spoke about the fundamental right to health, which flows from the right to life in Article 21. She pointed out that the stigma associated with being LGBT forces LGBT individuals to live closeted lives. This, in turn, denies LGBT individual access to adequate healthcare. She expressed grave concern about the high incidence of HIV/AIDS and other sexually transmitted diseases in LGBT communities across India.In Maneka Gandhi vs. UOI (1978) laid down the triple test for any law interfering with personal liberty:

(1) It must prescribe a procedure;

(2) the procedure must withstand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation and

(3) It must withstand the test of Article 14.

The law and procedure authorising interference with personal liberty and right of privacy must also be right, just and fair and not arbitrary, or oppressive. It is now established that the right to life and liberty under Article 21 consists of the right to privacy as well.

 B.     Right to privacy and police investigation

The right to privacy may also come in conflict with several aspects of police investigation. Narco–analysis, brain mapping tests and polygraph tests lead to unjustified intrusion into one person’s right to privacy. The Supreme Court has acknowledged the right to privacy by branding these tests to be unconstitutional and inhumane. Yet sections of the executive –law and order machinery—continue to use or apply them, regardless. The Court ruled in Selvi vs. State of Karnataka (2010) 7 SCC 263 that the use of such neuroscientific investigative techniques constituted testimonial compulsion and violated an accused person’s right against self-incrimination under Article 20(3), and their right to life and personal liberty under Article 21 of the Constitution.

 In the case of A.K Gopalan v. the State of Madras (1950)and also the relaxation of this stringent stand may well be felt within the decision of Maneka Gandhi v. Union of India (1978). The right to life was considered to not be the embodiment of mere animal existence, but the guarantee of a full and meaningful life. Being a part of society often overrides the very fact that we are individuals first. Each individual needs their private space for whichever activity (assuming here that it shall be legal). The state accordingly gives each person the right to enjoy those private moments. Clinton Rossiter in his book Constitutional Dictatorship: Crisis Government in the Modern Democracies, 1948 has said that privacy could be special reasonable independence that may be understood as a trial to secure autonomy in a minimum of some personal and spiritual concerns. This autonomy is the most special thing that the person can enjoy. They’re truly free humans there. This is often not a right against the state, but against the planet.

C. Indian Criminal Law: Presumption of Innocence

The presumption of innocence is the principle which asserts that an individual is always considered “innocent until proven guilty”.A fundamental principle behind the right to a fair trial is that every person should be presumed innocent unless and until proven guilty. Many people who are accused of crimes will ultimately be found innocent. This is why any restriction on an accused person’s rights, such as holding them in pre-trial detention, should only take place where absolutely necessary. As a logical extension of this principal that is fundamental to Indian law, civil and criminal, the presumption of innocence, debars or precludes the state from imposing peremptory and un-tested (by the state executive/police) punishment without due process of law, civil and criminal being followed. In these cases, first is the issue of whether the “accused” were in fact guilty of violation of Article 19(1)(a) and (b) [the right to freedom of speech and expression and the right to assemble freely and without arms] during the protests, second the issue of other laws –municipal, land etc –which are in place that lay down stringent procedures before properties can be seized or destroyed.

 In 1980, the Constitution Bench in Gurbaksh Sibbia (1980 SCC (2) 565) hailed thepresumption as of innocence as“salutary and deep[grainedin our criminal jurisprudence]” but stopped short of saying that it flows from Article 21. Nonetheless, the Court held that while interpreting section 438 Cr.P.C.—which provides for the grant of anticipatory bail—a liberal approach must be adopted in view of the presumption of innocence, for “the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions.” A holistic reading of Sibbia suggests that the Court implicitly recognises a link between Article 21 and the presumption of innocence, though it is not precisely spelt out.

In Narendra Singh & Anr. Vs. State of MP (2004) 10 SCC 699, a division bench of Hon’ble Supreme Court labelled the presumption a “human right” while holding that the burden of proof always remains on the prosecution in a criminal trial, even where a plea of alibi is raised. This label was reiterated in context of the twin conditions under MCOCA by a 3-judge bench in RanjitSingSharma ((2005) 5 SCC 294). Like in Sibbia, the Court spoke of Article 21 and the presumption of innocence in the same breath: “Presumption of innocence is a human right. Article 21 in view of its expansive meaning not only protects life and liberty but also envisages a fair procedure. Liberty of a person should not ordinarily be interfered with unless there exist cogent grounds therefor….” Yet, conspicuously, the Court did not commit itself to a position concretely linking the presumption with Article 21.

 The link with Article 21

Article 21 permits the State to breach the right to life and personal liberty (such as by incarcerating a convict) only after following a fair, just and reasonable legal procedure. Keeping the above judgments aside, the link between Article 21 and the presumption can be traced directly to the ‘just, fair and reasonable’ requirement. There are at least two reasons why the presumption of innocence is an important aspect of fairness and reasonableness in criminal law.

Compliance with Article 14

As held in Maneka Gandhi (1978), a law restricting personal liberty must also pass muster under Article 14. Hence, if the law makes a classification, it must be shown that the classification has a rational nexus with the object sought to be achieved. Article 14 also prohibits an unreasonable classification made by a combination of laws; hence, if two offenders are treated differently from the perspective of the presumption of innocence by two different statutes, the tests of Article 14 would need to be satisfied.

More Jurisprudence on the issue

Allahabad HC Orders Removal of UP Govt Banners Naming Anti-CAA Protesters Accused of Violence:

 1.      In-Re Banners Placed on Road Side Vs State Of U.P. on March 9, 2020:

On March 9, 2020, a benchcomprising Hon’ble Chief Justice Govind Mathur and Justice Ramesh Sinha order ordered the Uttar Pradesh government to remove all posters with names, photographs and addresses of anti-Citizenship Amendment Act protestors that have been put up in Lucknow. The hoardings, ordered to be put up by chief minister, Adityanath, had been set up to identify those who allegedly committed violence during demonstrations against the Act.The bench was hearing a suo motu public interest litigation taken by the court itself, after reports surfaced that the state government has put up banners with pictures, names and addresses of the riot-accused. Calling it an “an unwarranted interference in the privacy of people”, the Allahabad High Court, ordered the Uttar Pradesh government to remove hoardings of those booked in cases of alleged vandalism and arson linked to protests against the Citizenship Act in Lucknow on December 19, 2019.

The High Court further said the hoardings constituted an “unwarranted interference in privacy” and was a violation of Article 21 of the Constitution. On the state government’s claim that the High Court lacked territorial jurisdiction as the matter arose in Lucknow, the bench said the reason for its involvement was not about “personal injury” to those named in the hoardings, but “the injury caused to the precious constitutional value and its shameless depiction by the administration.” The High Court observed also that the act was “highly unjust” and that it was an absolute “encroachment” on personal liberty of the persons concerned.

  1. Malak Singh and others Vs. State of Punjab and Haryana AIR 1981 SCC(1) 420

The Supreme Court in Malak Singh and others Vs. State of Punjab and Haryana and others reported in 1981 SCC (1) 420, held that even for history sheeters who have the necessary criminal history, the information about the history sheet and the surveillance has to be kept discreet and confidential that cannot be shared with public and there is no question of posting the photographs of history sheeters even at police stations.

  1. People’s Union For Civil Liberties (PUCL) Vs. Union of India 1997 (1)SCC 301

The Supreme Court in People’s Union for Civil Liberties (PUCL) Vs. Union of India and another reported in 1997 (1) SCC 301 examined the issue with regard to availability of a fundamental right of privacy. In the PUCL case, Supreme Court held that “The right privacy – by itself – has not been identifiedunder the Constitution. As a concept it may be too broad andmoralistic to define it judicially. Whether right to privacycan be claimed or has been infrigned in a given case woulddepend on the facts of the said case. But the right to holda telephone conversation in the privacy of one’s home oroffice without interference can certainly be claimed as”right to privacy”.

Conversations on the telephone are oftenof an intimate and confidential character. Telephoneconversation is a part of modern man’s life. It isconsidered so important that more and more people arecarrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of a man’sprivate life. Right to privacy would certainly includetelephone-conversation in the privacy of one’s home oroffice. Telephone-tapping would, thus, infract Article 21 ofthe Constitution of India unless it is permitted under theprocedure established by law. Right to freedom of speech and expression is guaranteedunder Article 19(1) (a) of the Constitution. This freedommeans the right to express one’s convictions and opinionsfreely by word of mouth, writing, printing, picture, or inany other manner. When a person is talking on telephone, heis exercising his right to freedom of speech and expression.Telephone-tapping unless it comes within the grounds ofrestrictions under Article 19(2) would infract Article19(1)(a) of the Constitution.

  4.Kharak Singh vs The State Of U. P. & Others AIR 1963 SC 1295

A seven-judge bench judgment of the Supreme Court in Kharak Singh Vs. State of U.P examined the issue of surveillance and how it did or did not infringe fundamental rights.

“The questionfor consideration before this Court was whether “surveillance” under Chapter XX of the U.P. Police Regulations constituted an infringement of any of the fundamental rights guaranteed by Part III of the Constitution.” Regulation 236(b) which permitted surveillance by “domiciliary visits at night” was held to be violative of Article 21 on the ground that there was no “law” under which the said regulation could be justified.The word “life” and the expression “personal liberty” in Article 21 were elaborately considered by this Court in Kharak Singh’s case.

  1. Field, J. in Munn v. Illinois (1877) 94 U.S. 113, 142

In the case of Field, J. in Munn v. Illinois (1877) 94 U.S. 113, 142, the learned Judge pointed out that “life” in the 5th and 14th Amendments of the U.S. Constitution corresponding to Article 21, means not merely the right to the continuance of a person’s animal existence, but a right to the possession of each of his organs-his arms and legs etc. “We do not entertain any doubt that the word “life” in Article 21 bears the same signification. Is then the word “personal liberty” to be construed as excluding from its purview an invasion on the part of the police of the sanctity of a man’s home and an intrusion into his personal security and his right to sleep which is the normal comfort and a dire necessity for human existence even as an animal? It might not be inappropriate to refer here to the words of the preamble to the Constitution that it is designed to “assure the dignity of the individual” and therefore of those cherished human value as the means of ensuring his full development and evolution. We are referring to these objectives of the trainers merely to draw attention to the concepts underlying the Constitution which would point to such vital words as “personal liberty” having to be construed in a reasonable manner and to be attributed that sense which would promote and achieve those objectives and by no means to stretch the meaning of the phrase to square with any preconceived notions or doctrinaire constitutional theories.”

  1. Wolfs. Vs. Colorado 338 U.S. 25 (1949)

Frankfurter J. observed in Wolfs. Colorado,“The security of one’s privacy against arbitrary intrusion by the police is basic to a free society. It is therefore implicit in ‘the concept of ordered liberty’ and as such enforceable against the States through the Due Process Clause. The knock at the door, whether by day or by night, as a prelude to a search without authority of law but solely on the authority of the police, did not need the commentary of recent history to be condemned as inconsistent with the conception of human rights enshrined in the history and the basic constitutional documents of English-speaking peoples We have no hesitation in saying that were a State affirmatively to sanction such police incursion into privacy it would run counter to the guaranty of the fourteenth Amendment.

Murphy J. considered that such invasion was against “the very essence of a scheme of ordered liberty.”While it is true that in the decision of the U.S. Supreme Court from which these extracts are made, the Court had to consider also the impact of a violation of the Fourth Amendment which reads:“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” While the Indian Constitution does not, in terms confer any comparable constitutional guarantee, nevertheless, these extracts do show (establish) that an unauthorised intrusion into a person’s home and the disturbance caused to him thereby, is as it were the violation of a common law right of a man-an ultimate essential of ordered liberty, which is the basis of the very concept of civilisation.

  1. Semayne Vs. Gresham(January 1, 1604) 5 Coke Rep. 91

An English Common Law maximasserts that “every man’s house is his castle” and in Semayne’s case (1604) 5 Coke 91, where this wasapplied, it was stated that “the house of everyone is to him as his castle and fortress as well as for his defence against injury and violence as for his repose”.

Though the Semayne’s case was concerned with the law relating to executions in England, but the passage extracted has a validity quite apart from the context of the particular decision. It embodies an abiding principle which transcends mere protection of property rights and expounds a concept of “personal liberty” which does not rest on any element of feudalism or on any theory of freedom which has ceased to be of value.Therefore, Clause (b) of Regulation 236 is plainly violative of Article 21 and as there is no “law” on which the same could be justified it must be struck down as unconstitutional.

  1. Minority Opinion on Article 21

Koka Subba Rao J. (as the learned Judge then was) in his minority opinion in Kharak Singh Vs. State of U.P., also came to the conclusion that right to privacy was a part of Article 21 of the Constitution but went a step further and struck down Regulation 236 as a whole on the following reasoning:”Further, the right to personal liberty takes in not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life. It is true that the Indian Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person’s house, where he lives with his family, is his “castle”: it is his rampart against encroachment on his personal liberty.

  9. Gobind vs State Of Madhya Pradesh And Anr. (1975) 2 SCC 148

In Gobind Vs. State of U.P., a three-Judge Bench of this Court considered the constitutional validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulations which provided surveillance by way of several measures indicated in the said regulations. This Court upheld the validity of the regulations by holding that Article 21 was not violated because the impugned regulations were “procedure established by law” in terms of the said Article.The Supreme Court in its historical judgment in Justice K.P. Puttaswamy and others Vs. Union ofIndia and others reported in AIR 2017 SC 4161affirmed the constitutional right to privacy. Itdeclared privacy an intrinsic component of Part III of Constitution of India that lays down ourfundamental rights relating to equality, freedom of speech andexpression, freedom of movementand protection of life and personal liberty. These fundamental rights cannot be given or taken awayby law and laws. All the executive actions must abide by them. The Supreme Court has however,clarified that like most other fundamental rights the right to privacy is not an “absolute right”. Aperson’s privacy interests can be overridden by compounding state and individual interests subjectto satisfaction to certain tests and bench marks. The nine Judges Bench noticed certain tests andbench marks, which are liability, legitimate goal, proportionately and procedural guarantees.

D. Powers of the Governor

 The Governor is the chief executive head of the State but he enjoys only nominal or titular power like the President of India. In the recent case of the Jharkand Governor issuing directions to the state police, the serious issue of Ramesh Bais committing a serious case of constitutional over-reach arise. While being the nominal head of the state, the Governor while being given exceptional powers under Articles 355 and 356, he is in general not empowered to exercise real power that is vested in elected executive, that is the chief minister and council of ministers. The constitutional position is laid down in in Articles 154, 163 (discretionary power) and 164.

Recent abuse of unitary power by the central government has led to a spate of cases where a person associated with a particular political ideology has been appointed as the Governor. This clearly is what resulted in the Jharkhand kind of unconstitutional call that was called back by the elected state executive the very next day.

Not too long back, Rajasthan (2020), a controversy arose over the Governor’s refusal to procedurally okay the dates of the proposed state assembly and the agenda to be discussed therein.  Under the Constitution, the elected government alone has the prerogative to decide the date of the proposed session, even if the Governor suggests another date that he is bound to sign the order.

In Shamsher Singh v/s State of Punjab1975 SCR (1) 814, a Seven-Judge Constitutional bench of the Supreme Court had categorically laid down, “The Governor has no right to refuse to act on the advice of the Council of Ministers. Such a position is antithetical to the concept of responsible Government.” This statement underlines the constitutional understanding of the the role of the Governor.

In S.R. Bommai vs Union of India case (1994) SCC (3), a 9-membner bench of the Supreme Court verdict ruled that the Assembly is the only forum that should test the majority of the government and that the opinion of the Governor (referred to as the agent of Central Government) has no say. This arose out of a situation wherein the then Governor P. Venkatasubbaiah of Karnataka refused to give Bommai (then CM of Karnataka 1989) an opportunity to test his majority in the Assembly even after receiving a copy of the resolution passed by the Janata Dal Assembly. Bommai, then moved Karnataka High Court against the Governor’s decision to recommend President’s Rule which was dismissed by the High Court.

In Nebam Rebia and Etc, Etc vs Deputy Speaker And Ors. (2017) 13 SCC 332 the Supreme Court stated that the role of the Governor ends with the summoning of the house so far as the assembly is concerned. The Supreme Court stated that a Governor “cannot have an overriding authority, over the representatives of the people, who constitute… the state legislature… and/or even the executive Government functioning under the Council of Ministers with the Chief Minister as the head”.

There have been periods of misuse and overreach by the central government—during the Emergency and by the present regime, now in its second term. The Administrative Reforms Commission (1968) highlighted that the appointment of the Governor should not be made based on political affiliation that would undermine his office. It also recommended that the Governor’s report on President’s rule should be based on subjectivity.

Besides, the Sarkaria Commission (1988) had also emphasized the character of the Governors personalities to be appointed. It stated, “Four criteria for being appointed as Governor, including that the person should be ’eminent in some walk of life, should be a person…from outside of the State, and should be detached and not too intimately connected with local politics of the state.”

Given the recent acrimonious developments in states where ideologically pliant governors have run interference — few examplesare Goa (2017), Meghalaya (2018), Manipur (2017) and Karnataka (2018)—jurists have been recommending that for the office of Governors to function effectively and to maintain institutional credibility, the appointment process of the Governors requires revision which should also involve State Governments. One particularly sordid example was from 2021, in Karnataka when the (present) Union government, rather brazenly instructed the Governor of Karnataka, Vajubhai Vala to chair an all-party virtual meeting (of the Bharatiya Janata Party-BJP). This violated constitutionality as the Governor, must to refrain from entertaining any party-related activities and the decision to call a meeting is entirely under the ambit of powers of the chief minister.

This would require a constitutional amendment wherein apart from ideological neutrality, constitutional consensus between states and the centre should be ensured. Taking into account a fledgling (read flawed) democracy’s experience of seven plus decades, a well-knit procedure of appointment, with his powers and functions should be laid down that ensure that the Governor acts independently rather than being instructed by the Central Government

Post Script: Exceptions in Law

Legal provision and Supreme Court guidelines on identity disclosure of Rape Survivor:There are several legal provisions that require protection of the identity of survivors and victims of crimes – some specifically for children, and others for certain crimes against women.

Section 228 (A) of the Indian Penal Code (IPC) had provisions to penalise those disclosing the identities of rape survivors directly or indirectly and Section 23(2) of the POCSO Act prohibits the disclosure of the identity of a child victim of sexual offences “including his name, address, photograph, family details, school, neighbourhood or any other particulars which may lead to disclosure of identity of the child.Violation of this prohibition is a criminal offence, punishable with six months to one year in jail as well as a fineSection 74 of the Juvenile Justice Act prohibits the disclosure of the “name, address or school or any other particular,” which can be used to identify a child who is a victim of any crime, or even a child who is accused of committing a crime, as well as children who are witnesses to a crime. Violating this prohibition is also a criminal offence, punishable with up to six months’ imprisonment, and/or a fine.

The Supreme Court in Bhupinder Sharma Vs. State of Himachal Pradesh(2003) 8 SCC 551held as follows; “We do not propose to mention name of the victim, section 228-A of the Indian Penal Code, 1860 makes disclosure of identity of victim of certain offences punishable.

Detailed guidelines were laid down by the Supreme Court (SC) in Nipun Saxena v. Union of India, (2019) 2 SCC 703when the identity of the petitioner was brought before HC. The court has also directed the lower courts conducting trials in rape and cases under provisions of the Protection of Children from Sexual Offences (POCSO) Act, 2012, to conceal the name of the survivor, by referring to them with some abbreviations or letters such as “X”, while framing charges, recording statements or evidences of the survivor or of any other witness.

“The name, place of residence, age, occupation shall be kept in a sealed cover and in the name column, they can be referred in the same manner described while framing charge, keeping the address column, occupation column blank,” said the bench. In Nipun Saxena’s case, the Supreme Court (SC) declared that “no person can print or publish in print, electronic, social media, etc. the name of victims in rape and Pocso Act cases or even in a remote manner disclose any facts which can lead to the victim being identified and which should make their identity known to the public at large.” In the same case, SC has also restrained the police from putting first information reports (FIRs) in rape and Pocso cases in public domain and mask the name of the victims whenever documents relating to these cases are required to be made public.

The SC in the Nipun Saxena case pointed out that;

“Para 4. Officer-in-Charge of the police station and the Investigating Officer in the case including the Special Juvenile Police Unit shall ensure that the identity of the victim is not disclosed in the course of investigation, particularly at the time of recording statement of the victim under section 24 of the Act (which as far as practicable may be done at the residence or a place of choice of the victim or that of his/her parents/custodian, as the case may be), his/her examination before Magistrate under section 25 of the Act, forwarding of the child for emergency medical aid under section 19(5) and/or medical examination under section 27 of the Act.

“Para5. The Investigating Agency shall not disclose the identity of the victim in any media and shall ensure that such identity is not disclosed in any manner whatsoever except the express permission of the Special Court in the interest of justice. Any person including a police officer committing breach of the aforesaid requirement of law shall be prosecuted in terms of section 23(4) of the said Act

“Para8. The identity of the victim particularly his/her name, parentage, address or any other particulars that may reveal such identity shall not be disclosed in the judgment delivered by the Special Court unless such disclosure of identity is in the interest of the child.

Context and Background:In Nipun Saxena Case, the bench reasoned that a victim of rape would face hostile discrimination and social ostracisation in society. Such a victim would find it difficult to get a job, would find it difficult to get married and would also find it difficult to get integrated in society. India’s criminal jurisprudence did not provide for an adequate witness protection programme and, therefore, the need was much greater to protect the victim and hide her identity.

Does the law make any exceptions?

Sub-section (2) of Section 228A of the IPC makes an exception for policeofficials who might have to record the true identity of the victimin the police station or in the investigation file. In the FIR, the name of thevictim would have to be disclosed. However, this should not bemade public and especially not to media, the bench held in Nipun SaxenaCase. An FIR relating to the offence of rape against a woman (oroffences against children falling within the purview of POCSO) shall not beput in the public domain to prevent the name and identity of thevictim frombeing disclosed, the bench clarified.

The bench also carved out an exception for a situation where an unidentified body is found:“There may be cases where the identity of the victim, if not her name, may have to be disclosed. There may be cases where a dead-body of a victim is found. It is established that the victim was subjected to rape. It may not be possible to identify the victim. Then, obviously, her photograph will have to be published in the media. Even here, we would direct that while this may be done, the fact that such victim has been subjected to a sexual offence need not be disclosed. There may be other situations where the next of kin may be justified in disclosing the identity of the victim. If any such need should arise, then we direct that an application to authorise disclosure of identity should be made only to the sessions judge/magistrate concerned and the said sessions judge/magistrate shall decide the application on the basis of the law laid down by us.”

Under what conditions is disclosure allowed?

Under clause (b) of Sub-section (2) of Section 228A of the IPC, if an adult victim has no objection to her name being published or identity being disclosed, she can authorise any person in writing to disclose her name. This had to be a voluntary and conscious act of the victim, the bench underlined. Such was the case with the ‘Park Street’ survivor, Suzette Jordan.“There were some victims who were strong enough and willing to face [the] society even after their names were disclosed. Some of them, in fact, help other victims of rape and they become a source of inspiration to other rape victims. Nobody could have any objection to victim disclosing her name as long as victim was a major,” the bench explained

 (This legal resource was a combined effort of the CJP Legal Team and intern, Aman Khan)


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