The Supreme Court on Monday (July 22) stayed the enforcement of a public notice issued by the police to display the names of their owners and employees in hotels, dhabas and shops along the Kanwar Yatra route in Uttar Pradesh’s Muzaffarnagar district.
The Supreme Court’s order also applies to other states — police in Haridwar (Uttarakhand) and Ujjain (Madhya Pradesh) have issued similar orders.
The Muzaffarnagar police notification issued on July 17 says that religious discrimination is not the intention. In the past, law and order problems arose because of the names of the shops. It created confusion among Kanwariyas who follow a strict vegetarian diet.
Several parties, including Trinamool Congress MP Mahua Moitra, the Civil Rights Defense Society, Delhi University professor Apoorvanand, and Amnesty International’s former India chief Agar Patel, sued against the order, saying it targeted Muslim-owned businesses and forced individuals to reveal their religious identity.
Petitioners argued that this could have economic consequences and lead to businesses and individuals being targeted. Also, they asked for a public withdrawal of this directive.
The Kanwar Yatra will begin on Monday (July 22) and continue till August 19. On behalf of the petitioners, senior advocates A.M. Singhvi, C.U. Singh and Huseba Ahmadi were present. State Government of Uttar Pradesh did not appear in court.
What are the takeaways from the investigation?
Government did not issue order: Justices Hrishikesh Roy and S.V.N. Bhatti noted that the bench had not passed any order empowering the police to issue directions in the case. In its order, the bench noted that such orders could be issued under the Food Safety and Standardization Act, 2006 or the Street Vendors Act, 2014 to ensure that Kanwar pilgrims are served “sud shakhahari” (strictly vegetarian) food.
Limits on police action: The Bench held that the police cannot usurp the powers of the competent authority without a statutory basis even to take action under these Acts. Orders issued by the police requiring shops to voluntarily disclose the names of owners and employees; However, the order of the court took note of the petitioners’ submissions that “punitive proceedings have been initiated against the food traders”.
Question of Discrimination: The Court did not weigh petitioners’ arguments on constitutional grounds. Advocate Singhvi argued that the guidelines discriminate against individuals on the basis of religion, violate Article 15(1) and support the practice of untouchability (prohibited under Article 17) by economically ignoring companies that employ people from backgrounds including Muslims and Dalits.
What is the legal basis for orders issued by the police?
The Muzaffarnagar police did not mention any law in their guidelines to shopkeepers. Therefore, the Supreme Court has to consider which law empowers the police and state governments to carry out these guidelines.
In cases of urgency often causing nuisance or danger, orders are passed under Section 144 of the Indian Penal Code, 1860 – largely reproduced as Section 163 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
This provision states that a Magistrate (authorized by the State Government) may direct any person to refrain from a particular act or make a particular order in respect of certain property in his possession or under his management.
Such an order may be issued “to prevent nuisance, annoyance or injury to any person lawfully employed, or danger to human life, health or safety or disturbance of the public peace, or riot, or violence”.
In 2012, the court placed some restraints on the exercise of powers under Article 144 in the ‘Ramlila Maidan incident’ case. In February 2011, when the UPA government was in power, yoga guru Baba Ramdev organized a protest at Delhi’s Ramlila Maidan against corruption allegations. After Ramdev started his hunger strike, Prohibitory Order 144 was imposed in the area. Also, at around 1 am, the police came and reportedly assaulted some of the sleeping protesters.
The Supreme Court voluntarily accepted to investigate the incident. Further, the court held that any action taken by a public authority vested with statutory power (under Article 144) must be tested on two grounds.
First, was the action within the scope of the authority conferred by the statute – that is, did the statute confer on the public authority the power to take the action in question? Secondly, even if the public authority has power to take action under the Act, is the action justified?
In the Kanwar Yatra case, if there is any law for the police and the state government to issue directions to the shopkeepers, the court has to see whether the directions given are reasonable.
Do these guidelines violate consumers’ privacy rights?
The court will have to decide whether businesses are infringing their right to privacy under Article 21 of the Constitution by forcing businesses to disclose the names of shop owners and employees to everyone.
A nine-judge bench of the Supreme Court unanimously recognized that individuals have a fundamental right to privacy in the Right to Privacy judgment (‘Justice KS Puttasamy v. Union of India’, 2017). Judge T.Y. Chandrachud (now the Chief Justice of India) in a majority decision, one of the essential aspects of privacy is privacy of mind, which includes an individual’s religious belief and freedom. It is his choice whether or not to reveal those choices to the world.
Justice Chandrachud established a three-pronged test to determine when the government can take steps to limit the right to privacy. First, there must be a law providing for such restrictions. Second, there must be a legitimate state purpose in restricting the right to privacy. Third, the restriction of the right to privacy must not be disproportionate to the government’s objective, thus ensuring a rational connection between the restriction and the objective.
In the Kanwar Yatra case, the court had to consider whether the right to privacy was restricted by police orders. If a court finds that there is a law on the books supporting such a ban, it must hear the merchants and decide whether the police’s stated purpose — namely, to avoid a law and order situation — is legitimate. Displaying the names of shop owners and employees is a proportionate reflection attached to this objective.
Do police guidelines discriminate against business owners and employees?
Article 15(1) of the Constitution states, “The State shall not discriminate against any citizen solely on grounds of religion, race, caste, sex, place of birth or any of them.
The court must decide whether asking individuals to reveal their names — in effect their religious and caste identity — discriminates against shop owners and employees on the basis of their identity, as it allegedly targets Muslim-owned businesses.
According to a notification by the Muzaffarnagar police, “The purpose of the directive is to facilitate pilgrims passing through Muzaffarnagar district to avoid certain food items. Petitioners Apoorvanand and Agar Patel said the orders create a discriminatory presumption that only people belonging to certain castes/religions can prepare and serve Satvik or pure vegetarian food.
Another aspect which the Court may look into is whether the right to carry on any profession or to carry on any profession, trade or business under Article 19(1)(g) is being infringed. MP Mahua Moitra said these guidelines have created an environment for complete economic marginalization of the Muslim minority.
